Supreme Court of India
UNION OF INDIAversusV. SRIHARAN @ MURUGAN & ORS.
- Citation
- 2015 INSC 886
- Decided
- 2 December 2015
- Disposal
- Reference answered
- Bench
- H L DATTU
Holding
Imprisonment for life means imprisonment for the rest of the convict's life, and the court can impose a special category of sentence in substitution of death penalty that is beyond the application of remission, subject to the constitutional powers of pardon under Articles 72 and 161.
Summary
The case arose from the assassination of former Prime Minister Rajiv Gandhi, for which several accused were convicted and sentenced to death, later commuted to life imprisonment by the Supreme Court. The State of Tamil Nadu proposed to remit the life sentences of the convicts, prompting the Union of India to file a writ petition challenging the state's power to do so. A Constitution Bench was constituted to answer seven questions concerning the nature of life imprisonment, the scope of remission powers, and the interplay between constitutional and statutory authorities. The majority held that life imprisonment means imprisonment for the remainder of the convict's natural life, and that a special category of sentence beyond remission can be imposed in substitution of death penalty. The Court also ruled on the primacy of the Union government in certain cases, the mandatory procedure for remission under Section 432 CrPC, and that 'consultation' under Section 435(1) CrPC implies 'concurrence' in specified circumstances. The reference was answered accordingly, and the matters were directed to be listed before a three-judge bench for further orders.
Issues considered
- Whether imprisonment for life under Section 53 read with Section 45 IPC means imprisonment for rest of life or a convict has a right to claim remission, and whether a special category of sentence beyond remission can be made as per Swamy Shraddananda (2).
- Whether the Appropriate Government can exercise remission under Sections 432/433 CrPC after the President or Governor has exercised power under Article 72 or 161, or after this Court has exercised power under Article 32.
- Whether Section 432(7) CrPC gives primacy to the executive power of the Union and excludes the State where the power is co-extensive.
- Whether the Union or State has primacy over subject-matter in List III of the Seventh Schedule for remission.
- Whether there can be two Appropriate Governments under Section 432(7) CrPC.
- Whether suo motu exercise of remission under Section 432(1) is permissible and whether the procedure under Section 432(2) is mandatory.
- Whether 'consultation' under Section 435(1) CrPC implies 'concurrence'.
Legislation cited
- Code of Criminal Procedure, 1973s. 2(y), s. 4, s. 432, s. 433, s. 433A, s. 434, s. 435
- Constitution of Indias. 161, s. 162, s. 246, s. 249, s. 250, s. 251, s. 252, s. 254, s. 256, s. 257, s. 258, s. 355, s. 72, s. 73
- Delhi Special Police Establishment Act, 1946s. 3, s. 4, s. 5, s. 6
- Indian Penal Code, 1860s. 120B, s. 121, s. 132, s. 194, s. 195A, s. 302, s. 305, s. 307, s. 364A, s. 370, s. 376A, s. 376D, s. 376E, s. 396, s. 45, s. 489A-489D, s. 53, s. 54, s. 55, s. 55A, s. 57
Subjects
life imprisonmentremissioncommutationappropriate governmentconsultation vs concurrencedeath penaltyrarest of rareconstitutional power of pardonseparation of powerssentencingexecutive powerfederalism
Judgment
[2015] 14 S.C.R. 613
UNION OF INDIA A
v.
V. SRI HARAN@ MURUGAN & ORS.
(Writ Petition (Crl.) No. 48 of 2014)
B
DECEMBER 02, 2015
[H. L. DATTU, CJI,
FAKKIR MOHAMED IBRAHIM KALIFULLA,
PINAKI CHANDRA GHOSE,
ABHAY MANOHAR SAPRE AND c
UDAY UMESH LAUT, JJ.)
Penal Code, 1860 - s. 53 r/w s.45 - Whether
imprisonment for life in terms of s.53 r/w s.45 of /PC meant
imprisonment for rest of the life of the prisoner or a convict
undergoing life imprisonment has a right to claim remission D
and whether as per the principles enunciated in paras 91 to
93 of Swamy Shraddananda (2) case, a special category of
sentence may be made for the very few cases where the death
penalty might be substituted by the punishment of
imprisonment for life or imprisonment for a term in excess of E
fourteen years and to put that category beyond application
of remission - Held (per majority): Imprisonment for life in
terms of s.53 r/w s.45 of /PC only means imprisonment for
rest of life of the convict - The right to claim remission,
commutation, reprieve etc. as provided under Art. 72 or F
Art. 161 of the Constitution will always be available being
Constitutional Remedies untouchable by the Court - The
ratio laid down in Swamy Shraddananda case that a special
category of sentence; instead of death can be substituted by
the punishment of imprisonment for life or for a term G
exceeding 14 years and put that category beyond application
of remission is well-founded - Constitution of India, 1950 -
Arts. 72 and 161 - Sentence I Sentencing- Remission.
H
613
614 SUPREME COURT REPORTS [2015] 14 S.C.R.
A Code of Criminal Procedure, 1973-ss.432 and 433-
Whether the "Appropriate Government" is permitted to
exercise the power of remission u/ss.4321433 CrPC after
parallel power has been exercised by the President under
Art. 72 or the Governor under Art.161 or by this Court in its
B Constitutional power under Art.32- Held (per majority): The
exercise of power u/ss.432 and 433 of CrPC will be available
to the Appropriate Government even if such consideration
was made earlier and exercised u!Art. 72 by the President or
u/Art. 161 by the Governor-As far as the application ofArt.32
c of the Constitution by Supreme Court is concerned, the
powers u/ss.432 and 433 are to be exercised by the
Appropriate Government statutorily and it is not for the
. Supreme Court to exercise the said power and it is always
left to be decided by the Appropriate Government -
o Sentence I Sentencing - Remission.
Code of Criminal Procedure, 1973 - s.432(7) & (6) -
Whether s.432(7) CrPC clearly gives primacy to the
Executive Power of the Union and excludes the Executive
Power of the State where the power of the Union is coextensive
E - Whether the Union or the State has primacy over the
subject-matter enlisted in List Ill of the Seventh Schedule to
the Constitution of India for exercise of power of remission -
Whether there can be two Appropriate Governments in a given
case u/s.432(7) CrPC - Held (per majority): The status of
F Appropriate Government whether Union Government or the
State Government will depend upon the order of sentence
passed by the Criminal Court as has been stipulated in
s.432(6) and in the event of specific Executive Power
conferred on the Centre under a law made by the Parliament
G or under the Constitution itself then in the event of the
conviction and sentence covered by the said law of the
Parliament or the provisions of the Constitution even if the
Legislature of the State is also empowered to make a law on
the same subject and coextensive, the Appropriate
H
UNION OF INDIA v. V. SRI HARAN @ MURUGAN 615
Government will be the Union Government having regard to A
the prescription contained in the proviso to Art. 73(1)(a) of the
Constitution - The principle stated in the decision in G. V.
Ramanaiah case should be applied- Cases which fall within
the four corners of s.432(7)(a) by virtue of specific Executive
Power conferred on the Centre, the same will clothe the Union B
Government the primacy with the status of Appropriate
Government- Barring cases falling u/s.432(7)(a), in all other
cases where the offender is sentenced or the sentence order
is passed· within the territorial jurisdiction of the concerned
State, the State Government would be the Appropriate C
Government- Constitution of India - Seventh Schedule, List
II/ -Sentence I Sentencing - Remission.
Code of Criminal Procedure, 1973- s.432(1) and (2)-
Whether suo motu exercise of power of remission u/s.432(1)
is permissible in the scheme of the section, if yes, whether D
the procedure prescribed in sub-section (2) of the same
section is mandatory or not- Held(per majority): No suo motu
power of remission is exercisable u/s.432(1) CrPC - It can
only be initiated based on an application of the person
convicted as provided u/s.432 (2) and that ultimate order of E
suspension or remission should be guided by the opinion to
be rendered by the Presiding Officer of the concerned Court
- Sentence I Sentencing- Remission.
Code of Criminal Procedure, 1973 - s.435(1) - F
Whether the term "Consultation" stipulated in s.435(1) CrPC
implies "Concurrence" - Specific prescription contained in
s.435(1)(a) CrPC read along with Arts. 72, 73(i)(a), 161 and
162 of the Constitution - Principles derived ·on how and in
what manner the expression "consultation" occurring in
s.435(1)(a) can be construed- Held (per majority): Having G
regard to the principles so culled out, it is imperative that it is
always safe and appropriate to hold that in those situations
covered by sub-clauses (a) to (c) of s.435(1) falling within the ·
jurisdiction of the Central Government it will assume primacy H
616 SUPREME COURT REPORTS [2015) 14 S.C.R.
A and consequently the process of "Consultation" in reality be
held as the requirement of "Concurrence"'.
Words and Phrases- Term "consultation" stipulated in
s.435(1) CrPC- Meaning of.
B In the judgment of Kalifulla, J. (for H.L. Dattu, CJI,
himself and Pinaki C. Ghose, J.)
Swamy Shraddananda (2) alias Murali Manohar
Mishra v. State of Kamataka (2008) 13 SCC 767
: 2008 (11) SCR 93- affirmed.
c G V. Ramanaiah v. The Superintendent of Central
Jail, Rajahmundry and others AIR 1974 SC 31 :
1974 (1) SCR 852- held applicable.
Supreme Court Advocates on Record Association
D and ors. v. Union oflndia (1993) 4 SCC 441 : 1993
(2) Suppl. SCR 659; S.R. Bommai and others v.
Union of India and others (1994) 3 SCC 1 : 1994
(2) SCR 644 - relied on.
State of U.P. and another v. Johri Mal (2004) 4
E SCC 714 : 2004 (1) Suppl. SCR 560; Justice
Chandrashekaraiah (Retired) v. Janekere C.
Krishna and others (2013) 3SCC117: 2013 (3)
SCR 987 - distinguished.
V. Sriharan alias Murugan v. Union of India & Ors.
F (2014) 4 sec 242 : 2014 (1) SCR 1093; Union
of India v. V. Sriharan @ Murugan & Ors. 2014
(11) SCC 1; K. Nagaraj and others v. State of
Andhra Pradesh and another1985 (1) SCC 523:
1985 (2) SCR 579; T. Venkata Reddy and others
G
v. State of Andhra Pradesh 1985 (3) SCC 198:
1985 (3) SCR 509; Gopal Vinayak Godse v. The
State of Maharashtra and others (1961) 3 SCR
440; Maru Ram etc., etc. v. Union of India and
another 1981 (1) SCR 1196; Sambha Ji Krishan
H
UNION OF INDIA v. V. SRIHARAN @MURUGAN 617
. Jiv. State of Maharashtra AIR 1974SC 147; State A
of Madhya Pradesh v. Ratan Singh and others
(1976) 3 sec 470 : 1976 (O) suppl. scR 552;
Ranjft Singh alias Roda v. Union Territory of
Chandigarh (1984) 1 SCC 31L; Ashok Kumar
alias Golu v. Union of India and others (1991) 3 B
SCC 498: 1991 (2) SCR 858; Sangeet and Anr.
v. State of Haryana 2013 (2) SCC 452 : 2012 (13)
SCR 85; Subash Chander v. Krishan Lal and
others (2001) 4 SCC 458 : 2001 (2) SCR 864;
Machhi Singh and ors. v. State of Punjab (1983) c
3 SCC 470: 1983 (3) SCR 413; Bachan Singh v.
State of Punjab (1980) 2 SCC 684; Jag Mohan
Singh v. State ofU.P (1973) 1SCC20: 1973 (2)
SCR 541; Aloke Nath Dutta and Ors. v. State of
West Bengal (2007) 12 SCC 230 : 2006 (10) D
Suppl. SCR 662; DalbirSingh and Ors. v. State
of Punjab (1979) 3 SCC 745 : 1979 (3)
SCR 1059; Shri Bhagwaqn v. State of Rajasthan
(2001) 6 sec 296: 2001 (3) SCR 656; Bhagirath
v. Delhi Administration (1985) 2 SCC 580: 1985 E
(3) SCR 743; Prakash Dhawal Khairnar (Patil) v.
State of Maharashtra (2002) 2 SCC 35 : 2001 (5)
Suppl. SCR 612; Ram Anup Singh and Ors. v.
State of Bihar (2002) 6 SCC 686; Mohd. Munna
v. Union of India and Ors. (2005) 7 SCC 417 : F
2005 (3) Suppl. SCR 233; Jayawant Dattatraya
Suryarao v. State of Maharashtra (2001) 10 SCC
109 : 2001 (5) Suppl. SCR 54 ; Nazir Khan and
others v. State of Delhi (2003) 8 SCC 461 : 2003
(2) Suppl. SCR 884; Satpal alias Sadhu v. State G
of Haryana and ors. (1992) 4 SCC172: 1992 (3)
SCR 898; Kehar Singh v. Union of India (1989)
1 SCC 204: 1988 (3) Suppl. SCR 1102; Bachan
Singh v. State of Punjab AIR 1980 SC 898; Machhi
Singh and Others v. State of Punjab AIR 1983 SC
H
618 SUPREME COURT REPORTS [2015] 14 S.C.R.
A 957 : 1983 (3) SCR 413; Santosh Kumar
Satishbhushan Bariyar v. State of Maharashtra
2009 (6) SCC 498 : 2009 (9) SCR 90; Prajeet
Kumar Singh v. State of Bihar (2008) 4 SCC 434 :
2008 (5) SCR 969; B.A. Umesh v. Registrar
B General, High Court of Karnataka (2011) 3 SCC
85: 2011 (2) SCR 367; State of Rajasthan v. Kashi
Ram (2006) 12 sec 254 : 2006 (8) Suppl.
SCR 501; Atbir v. Government of NCT of Delhi
(2010) 9 SCC 1 : 2010 (9) SCR 993; D.K. Basu v.
c State of West Bengal AIR 1997 SC 610 : 1996
(10) Suppl. SCR 284; Vikram Singh alias Vicky
& another v. Union of India & others AIR 2015 SC
3577: 2015 (10) SCR 816; Rameshbhai
Chandubhai Rathod v. State of Gujarat 2011 (2)
D SCC 764 : 2011 (1) SCR 829; State of Uttar
Pradesh v. Sanjay Kumar 2012 (8) SCC 537 :
2012 (7) SCR 359; II. Sriharan alias Murugan v.
Union of India & Ors. (2014) 4 SCC 242 : 2014
(1) SCR 1093; State of Punjab v. Kesar Singh
E (1996) 5. sec 495 : 1996 (3) Suppl. SCR 787 ;
Delhi Administration (now NCT of Delhi) v.
Manohar Lal (2002) 7 SCC 222 : 2002 (2) Suppl.
SCR 1; State (Government of NCT of Delhi) v.
Prem Raj (2003) 7 SCC 121 : 2003 (2) Suppl.
F SCR 235; State of Madhya Pradesh v. Ajit Singh
and others (1976) 3 SCC 616; Hanumant Dass
v. Vinay Kumar and ors. (1982) 2 SCC 177 : 1982
(3) SCR 595; Govt. ofA.P. and others v. M. T. Khan
(2004) 1 sec 616: 2003 (6) Suppl. SCR 490;
G
Lalu Prasad Yadav &Anr. v. State of Bihar &Anr.
(2010) 5 SCC 1 : 2010 (4) SCR 334; State of
Gujarat and Anr. v. Justice R.A. Mehta (Retired)
and ors. (2013) 3 SCC 1: 2013 (1) SCR 1; N.
Kannadasan v. Ajay Khose and Ors. (2009) 7 SCC
1 : 2009 (7) SCR 668; State through
H
UNION OF INDIA v. V. SRI HARAN @ MURUGAN 619
Superintendent of Police, CBI/SIT v. Nalini and A
others (1999) 5 SCC 253 : 1999 (3) SCR 1 -
referred to.
In the judgment of Uday Umesh Lalit, J. (for Sapre. J.
and himselO
B
Union of India v. V. Sriharan @ Murugan & Ors.
Etc. 2014 (11) SCC 1; State through
Superintendent of Police, CBI/SIT v. Nalini and
others 1999 (5) SCC 253: 1999 (3) SCR 1; L.K.
Venkat v. Union of India and Ors. (2012) 5 SCC c
292; Sriharan @ Murugan v. Union of India and
others 2014 (4) SCC 242 : 2014 (1) SCR 1093;
Mohd. Aslam alias Bhure v. Union of India and
oth.ers (2003) 4 sec 1 : 2003 (3) SCR 143; KM.
Nanavati v. State of Bombay (1961) 1 SCR 497; D
Kehar Singh and another v. Union of India and
another (1989) 1 SCC 204 : 1988 (3) Suppl.
SCR 1102; Epuru Sudhakar and another v.
Government ofAndhra Pradesh and others (2006)
8 SCC 161 : 2007 (9) SCR 599; Rai Sahib Ram
E
Jawaya Kapur and others v. State of Punjab 1955
(2) SCR 225; State of Madhya Pradesh v. Ratan
Singh and others (1976) 3 SCC 470: 1976 (0)
Suppl. SCR 552; State of Madhya Pradesh v.
Ajit Singh and others (1976) 3 SCC 616;
F
Hanumant Dass v. Vinay Kumar and others (1982)
2 sec 177 : 1982 (3) SCR 595; Govt. ofA.P. and
others v. M. T. Khan (2004) 1 SCC 616: 2003 (6)
Suppl. SCR 490; V. Ramanaiah v. The
Superintendent of Central Jail Rajahmundl'y and
G
others. (1974) 3 sec 531 : 1974 (1) SCR 852;
Zameer Ahmed Latifur Rehman Sheikh v. State
of Maharashtra and others (2010) 5 SCC 246:
2010 (4) SCR 1042; People's Union for Civil
Liberties and another v. Union of India (2004) 9
H
620 SUPREME COURT REPORTS [2015] 14S.C.R.
A SCC 580 : 2003 (6) Suppl. SCR 860; Kartar
Singh v. State of Punjab (1994) 3 SCC 569 : 1994
(2) SCR 375; Maru Ram etc. etc. v. Union of India
& Another (1981 )1 SCC 106; Sangeet and
another. v. State of Haryana (2013) 2 SCC 452 :
B 2012 (13) SCR 85; Mohinder Singh v. State of
Punjab (2013) 3 sec 294: 2013 (3) SCR 90;
Yakub Abdul Razak Memon v. State of
Maharashtra through CBI, Bombay (2013) 13
SCC 1: 2013 (1) SCR 1; L& T McNeil Ltd. v. Govt.
c of Tamil Nadu (2001) 3SCC170: 2001 (1) SCR
701; State of U. P. &another v. Johri Mal (2004) 4
SCC 714 : 2004 (1) Suppl. SCR 560; State of
Uttar Pradesh and others v. Rakesh Kumar
Keshari a17d another(2011) 5 SCC 341 : 2011 (5)
D SCR 1060; Justice Chandrashekaraiah (Retd.) v.
Janekere C. Krishna and others(2013) 3 SCC 117
: 2013 (3) SCR 987; Supreme Court Advocates-
on-Record Association and others v. Union of
India (1993) 4 sec 441 : 1993 (2) Suppl. SCR
E 659; State of Gujarat and another v. Justice R.A.
Mehta(Retd.) and others (2013) 3 SCC 1 : 2013
(1) SCR 1; State of West Bengal and others v.
Committee for Protection of Democratic Rights,
West Bengal and others (2010) 3 SCC 571 : 2010
F (2) SCR 979; Lalu Prasad Yadav and another v.
State of Bihar and another (201 O) 5 sec 1 : 201 o
(4) SCR 334; G Krishta Goud and J. Bhoomaiah
v. State of Andhra Pradesh and others (1976) 1
SCC 157; Krishnan and others v. State of Haryana
G andothers(2013) 14 SCC 24: 2013 (3) SCR 254;
State of Haryana and others v. Jagdish (2010) 4
sec 216: 2010 (3) SCR 716; State (Govt. ofNCT
of Delhi) v. Prem Ram (2003) 7 SCC 121 : 2003
(2) Suppl. SCR 235; Shatrughan Chauhan and
H
UNION OF INDIAv. V. SRIHARAN @MURUGAN 621
anotherv. Union of India and others(2014) 3 SCC A
1 : 2014 (1) SCR 609; Gopal Vinayak Godse v.
The State of Maharashtra and others (1961) 3
SCR 440; State of Haryana v. Mahender Singh
and others 2007(13) sec 606 : 2007 (11)
SCR 932; Laxman Naskar v. Union of India and B
others (2000) 2 sec 595 : 2000 (1) SCR 796;
Dalbir Singh & others v. State of Punjab (1979) 3
SCC 745: 1979 (3) SCR 1059; which in turn had
considered Rajendra Prasad v. State ofU.P. (1979)
3 SCC 646: 1979 (3) SCR 78; Vikram Singh@ C
Vicky & another v. Union of India and others AIR
2015 SC 3577: 2015 (10) SCR 816; Prem Chand
Garg and another v. Excise Commissioner, U.P.
and others AIR 1963 SC 996 : 1963 Suppl. SCR
885; Supreme Court Bar Association v. Union of D
India &another 1998 (4) sec 409 : 1998 (2) SCR
795; Pravasi Bhalai Sangathan v. Union of India
and others 2014 (11) sec 477; Sushi/ Kumar
Sharma \I. Union of India and others (2005) 6 SCC
281 : 2005 (1) Suppl. SCR 730; A.R. Antu/ay v. E
R.S. Naik (1988) 2 sec 602 : 1988 (1) Suppl.
SCR 1 - referred to.
Case Law Reference
In the judgment of Kalifulla, J. {for H.L. Dattu, CJI,
himself and Pinaki C. Ghose, J.}
F
2014 (1) SCR 1093 referred to Para 1
2014 (11) sec 1 referred to Para 1
1985 (2) SCR 579 referred to Para 25
G
1985 (3) SCR 509 referred to Para·25
2008 (11) SCR 93 affirmed Para 51
(1961) 3 SCR 440 referred to Para 52
H
622 SUPREME COURT REPORTS [2015] 14S.C.R.
A 1981 (1) SCR 1196 referred to Para 53
AIR 1974 SC 147 referred to Para 54
1976 Suppl. SCR 552 referred to Para 55
(1984) 1 sec 31L referred to Para 57
B 1991 (2) SCR 858 referred to Para 58
2001 (2) SCR 864 referred to Para 59
1983 (3) SCR 413 referred to Para 65
(1980) 2 sec 684 referred to Para 65
1973 (2) SCR 541 referred to Para 65
c
2006 (10) Suppl. SCR 662referred to Para 66
2001 (3) SCR 656 referred to Para 70
1979 (3) SCR 1059 referred to Para 70
1985 (3) SCR 743 referred to Para 70
D
2001 (5) Suppl. SCR 612 referred to Para 70 .
c2002) 6 sec 686 referred to Para 70
2005 (3) Suppl. SCR 233 referred to Para 70
2001 (5) Suppl. SCR referred to Para 70
E 2003 (2) Suppl. SCR 884 referred to Para 70
1992 (3) SCR 898 referred to Para 70
1988 (3) Suppl. SCR 1102referred to Para 80
AIR 1980 SC 898 referred to Para 85
F 1983 (3) SCR 413 referred to Para 85
2009 (9) SCR 90 referred to Para 85
2008 (5) SCR 969 referred to Para 85
2011 (2) SCR 367 referred tp Para 85
2006 (8) Suppl. SCR 501 referred to Para 85
G
2010-(9) SCR 993 referred to Para 85
1996 (10) Suppl. SCR 284referred to Para 85
2015 (10) SCR 816 referred to Para 86
2011 (1) SCR 829 referred to Para 87
H
UNION OF INDIAv. V. SRIHARAN@MURUGAN 623
2012 (7) SCR 359 referred to Para 87 A
2012 (13) SCR 85 referred to Para 105
2014 (1) SCR 1093 referred to Para 108
1996 (3) Suppl. SCR 787 referred to Para 108
2002 (2) Suppl. SCR 1 referred to Para 108 B
2003 (2) Suppl. SCR 235 referred to Para 108
(1976) 3 sec 616 referred to Para 114
1982 (3) SCR 595 referred to Para 114
2003 (6) Suppl. SCR 490 referred to Para 114
1974 (1) SCR 852 held applicable Para 121
c
2010 (4) SCR 334 referred to Para 145
1993 (2) Suppl. SCR 659 relied on Para 145
2013 (1) SCR 1 referred to Para 145
2009 (7) SCR 668 referred to Para 145 D
2004 (1) Suppl. SCR 560 distinguished Para 146
2013 (3) SCR 987 distinguished Para 146
1994 (2) SCR 644 relied on Para 146
1999 (3) SCR 1 referred to Para 147 E
In the judgment of Udall Umesh Lalit, J. {for Sa~re, J.
and himself}
2014 (11) sec 1 referred to Para 1
1999 (3) SCR 1 referred to Para 3
F
(2012) 5 sec 292 referred to Para 5
2014 (1) SCR 1093 referred to Para 5
2003 (3) SCR 143 referred to Para 11
(1961) 1 SCR 497 referred to Para 15 G
1988 (3) Suppl. SCR 1102referred to Para 15
2007 (9) SCR 599 referred to Para 15
1955 (2) SCR 225 referred to Para 20
H
624 SUPREME COURT REPORTS [2015] 14S.C.R.
A 1976 Suppl. SCR 552 referred to Para 23
(1976) 3 sec 616 referred to Para 23
1982 (3) SCR 595 referred to Para 23
2003 (6) Suppl. SCR 490 referred to Para 23
B
1974 (1) SCR 852 referred to Para 27
2010 (4) SCR 1042 referred to Para 28
2003 (6) Suppl. SCR 860 referred to Para 28
c 1994 (2) SCR 375 referred to Para 28
(1981) 1 sec 106 referred to Para 31
2012 (13) SCR 85 referred to Para 32
2013 (3) SCR 90 referred to Para 32
D 2013 (1) SCR 1 referred to Para 32
2001 (1) SCR 701 referred to Para 35
2004 (1) Suppl. SCR 560 referred to Para 35
2011 (5) SCR 1060 referred to Para 35
E
2013 (3) SCR 987 referred to Para 35
1993 (2) Suppl. SCR 659 referred to Para 35
2013 (1) SCR 1 referred to Para 35
F 2010 (2) SCR 979 referred to Para 37
2010 (4) SCR 334 referred to Para 38
(1976) 1 sec 157 referred to Para 44
2013 (3) SCR 254 referred to Para 44
G 2010 (3) SCR 716 referred to Para 45
2003 (2) Suppl. SCR 235 referred to Para45
2014 (1) SCR 609 referred to Para 48
(1961) 3 SCR 440 referred to Para 50
H
UNION OF INDIA v. V. SRIHARAN@ MURUGAN 625
2007 (11) SCR 932 referred to Para 53 A
2000 (1) SCR 796 referred to Para 54
1979 (3) SCR 1059 referred to Para 56
1979 (3) SCR 78 referred to Para 56
B
2015 (10) SCR 816 referred to Para 65
1963 Suppl. SCR 885 referred to Para 69
1998 (2) SCR 795 referred to Para 69
2014 (11) sec 477 referred to Para 72 c
2005 (1) Suppl. SCR 730 referred to Para 72
1988 (1) Suppl. SCR 1 referred to Para 74
CRIMINAL ORIGINAL JURISDICTION: Writ Petition
(Criminal) No. 48 of2014. D
Under Article 32 of the Constitution of India.
WITH
W. P. (Crl.) Nos. 185, 150 and 66 of 2014.
W. P. (Crl.) No. 1215 of 2011. E
Ranjit Kumar, SG, A. N. S. Nadkarni, Jugal Kishore Gilda,
AGs, Ms. V. Mohana, Rakesh Dwivedi, Ajit Kumar Sinha,
T. R. Andhyarujina, Mahabir Singh, Sr. Acjvs., Subramonium
Prasad, Sr. Adv., AAG, C. D. Singh, Gaurav Bhatia, F
Suryanaryan Singh, V. Madhukar, S. S. Shamshery, Anil
Grover, AAGs, Mrs. Binu Tamta, Ms. Movita, Dhruv Tamta,
D. L. Chidananda, R. K. Verma, B. Krishna Prasad,
Ms. Sushma Suri, Sinha Shrey Nikhilesh, Toyesh Tewari,
Sarthak Sachdev, Maanav Kumar, Jai Sahai Endlaw, G
Shouryendu Ray, Vinay Navare, Satyajeet Kr., Keshav Rajan,
Gwen K. B., Ms. Abha R. Sharma, Harshvir Pratap Sharma,
Ajay Sharma, Pankaj Kumar, Amit Sachan, Varun Thakur,
Varlnder Kumar Sharma, Ms. Shraddha Saran, Renjith B.
Marar, Ms. Lakshmi N. Kamal, Ms. Anu Dixit Kaushik, H
626 SUPREME COURT REPORTS [2015] 14 S.C.R.
A S. C. Patel, M. Yogesh Kanna, Ms. Sansriti Pathak, Jayant
Patel, Anip Sachthey, Ms. Shagun Matta, Kabir S. Bose,
Ms. Nancy Wadhwa, Yug Chaudhry, Ms. Lala Krishnamurty,
Ms. P.R. Mala, S. Prabu Ramasubramanian,AnirudhAnand,
Sidhartha Sharma, S. Gowthaman, Kovilan Poonkuntran,
B Sethu Mahendran, Rohit Kumar, Rishab Sancheti,
K. Paarivendhan, Ms. Anitha Shenoy, Ms. Aparna Appaiah,
E. C. Vdiya Sagar, Anil Kumar Mishra-I, Ashok Kumar Singh,
Sapam Biswajit Meitei, ~S. Vijayanand Sharma,
B. Khushvanshi, Balaji Srinivasan, Ms. Sylona Mahapatra:
C Apoorv Kurup Atul Jha, Sandeep Jha, Dharmendra Kumar
Sinha, Gopal Singh, Manish Kumar, Chand an K Geetha Umar,
Rituraj Biswas, Ms. Varsha Poddar, Guntur Prabhakar,
Ms. Prema Singh, Mishra Saurabh, Ms. Vanshaja Shukla, Ankit
Kr. Lal, Siddharth Geetha Bhatnagar, Anshuman Srivastava,
D S. S. Rebello, Nirnimesh Dube, Sanjay Parikh, Pukhrambam
Ramesh Kumar, Sumit Kumar Vats, Mrs. Geetha Kovilan,
P. R. Kovilan, Tapesh Kumar Singh, Mohd. Waquas,
V. G. Pragasam, Prabu Ramasubramanian, S. J. Aristotle;
Ms. Anitha Shenoy, Ms. Visruti Vijay, Ms. Aruna Mathur, Yusuf
E Khan, (For M/s.Arputham, Aruna &Co.), Ms. Vartika S. Walia,
(For Mis. Corporate Law Group), K. V. Jagdishvaran,
Ms. G Indira, Ms. Hemantika Wahi, Ms. Jesal Wahi, Ms. Puja
Singh, Ms. Pragati Neekhra, Utkarsh Jaiswal, Gaurav
Srivastava, VijayYadav, Karanveer Singh, Ms. Vanshja Shukla,
F Aditya Narayan Singh, Samir Ali Khan, Ms. Madhavi Divan,
Ms. Ranjeeta Rohtagi, Manan Verma, Ms. Jaya Khanna,
Nishant Ramakantrao Katneshwarkar, Arpit Rai, Ms. Rachana
Srivastava Ashutosh Kr. Sharma, Ms. Anvita Cowshish, Jagjit
Singh Chhabra, Renjith B. Marar, Ms. Lakshmi N. Kaimal,
G Ms. Anu Dixit Kaushik, Kumar Gaurav,Amit Sharma, Sandeep
Singh, Ms. Ruchi Kohli, Ramesh Babu, M. R., Jogy Scaria,
Reegan S. Bel, Karanveer Jindal, Ram Sankar, G. Ananda
Selvam, K. Mayil Samy, R. V. Kameshwaran, Mohit D. Ram,
Sushi! Karanjkar, Soumik Ghosal, Siddharth Sijoria,
H
UNION OF INDIA v. V. SRIHARAN@ MURUGAN 627
Dharmendra Kishor, K. N. Rai, Yatendra Sharma, Prashant A
Kumar, Sanjay Kumar Vi sen, Noopur Singhal, M ..K. Thakur,
Ms. Mala Dubey, Kamal Mohan Gupta, Ms. K. Enatoli Serna,
Edward Belho, Amit Kumar Singh, S. Udaya Kumar Sagar,
Krishna Kumar Singh, Advs. for.the appearing parties.
The Judgments and Order of the Court were delivered by: B
FAKKIR MOHAMED IBRAHIM KALIFULLA, J.
1. The Petitioner has challenged the letter dated
19.02.2014 issued by the Chief Secretary, Government of
Tamil Nadu to the Secretary, Government of India wherein the C
State of Tamil Nadu proposed to remit the sentence of life
imprisonment and to release the respondent Nos. 1 to 7 in the
Writ Petition who were convicted in the Rajiv Gandhi
assassination case. As far as respondent Nos. 1 to 3 are
concerned, originally they were imposed with the sentence of D
death. In the judgment reported as V. Sriharan alias Murugan
v. Union of India & Ors. -(2014) 4 SCC 242, the sentence of
death was commuted by this Court. Immediately thereafter,
the impugned letter came to be issued by the State of Tamil
Nadu which gave rise for the filing of the present Writ Petition. E
While dealing with the said Writ Petition, the learned Judges
thought it fit to refer seven questions for consideration by the
Constitution Bench in the judgment reported as Union of India
v. V. Sriharan@ Murugan & Ors. - 2014 (11) SCC 1 and
that is how this Writ Petition has now been placed before us. F
In paragraph 52, the questions have been framed for
consideration by this Bench. The said paragraph reads as
under:
."52.1 Whether imprisonment for life in terms of Section
53 read with Section 45 of the Penal Code meant G
imprisonment for rest of the life of the prisoner or a convict
undergoing life imprisonment has a right to claim
remission and whether as per the principles enunciated
in paras 91 to 93 of Swamy Shraddananda(2), a
H
628 SUPREME COURT REPORTS [2015] 14 S.C.R.
A special category of sentence may be made for the very
few cases where the death penalty might be substituted
by the punishment of imprisonment for life or
imprisonment for a term in excess of fourteen years and
to put that category beyond application of remission?
B 52.2 Whether the "Appropriate Government" is permitted
to exercise the power of remission under Section 432/
433 of the Code after the parallel power has been
exercised by the President under Article 72 or the
Governor under Article 161 or by this Court in its
c Constitutional power under Article 32 as in this case?
52.3 Whether Section 432(7) of the Code clearly gives
primacy to the Executive Power of the Union and
excludes the Executive Power of the State where the
D power of the Union is co-extensive?
52.4 Whether the Union or the State has primacy over
the subject matter enlisted in List Ill of the Seventh
Schedule to the Constitution of India for exercise of power
of remission?
E 52.5 Whether there can be two Appropriate Governments
in a given case under Section 432(7) of the Code?
52.6 Whether suo motu exercise of power of remission
under Section 432(1) is permissible in the scheme of
F the section, if yes, whether the procedure prescribed in
sub-clause (2) of the same Section is mandatory or not?
52.7 Whether the term "'Consultation"' stipulated in
Section 435(1) of the Code implies "'Concurrence"'?"
2. It was felt that the questions raised were of utmost
G critical concern for the whole of the country, as the decision on
the questions would determine the procedure for awarding
sentence in criminal justice system. When we refer to the
questions as mentioned in paragraph 52 and when we heard
the learned Solicitor General for the petitioner and the counsel
H
UNION OF INDIA v. V. SRI HARAN@ MURUGAN 629
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
who appeared forthe State of Tamil Nadu as well as respondent . A
Nos. 1 to 7, we find that the following issues arise for our
consideration:
(a) Maintainability of this Writ Petition under Article 32 of
the Constitution by the Union of India.
B
(b) (i) Whether imprisonment for life means for the rest
of one's life with any right to claim remission?
(ii) Whether as held in Shraddananda case a special
category of sentence; instead of death; for a term
exceeding 14 years and put that category beyond C
application of remission can be imposed?
(c) Whether the Appropriate Government is permitted to
grant remission under Sections 432/433 Code of
Criminal Procedure after the parallel power was
exercised under Article 72 by the President and under D
Article 161 by the Governor of the State or by the
Supreme Court under its Constitutional power(s) under
Article 32?
(d) Whether Union or the State has primacy for the E
exercise of power under Section 432(7) over the subject
matter enlisted in List Ill of the Seventh Schedule for grant
of remission?
(e) Whether there can be two Appropriate Governments
under S.ection 432(7) of the Code? F
(f) Whether the power under Section 432(1) can be
exercised suo motu, if yes, whether the procedure
prescribed under Section 432(2) is mandatory or not?
(g) Whether the expression "'Consultation"' stipulated in G
Section 435(1) of the Code implies "Concurrence"?
3. On the question of maintainability of the Writ Petition
by the Union of India, according to learned Solicitor General,
the same cannot be permitted to be raised in this Reference
H
630 SUPREME COURT REPORTS [2015] 14S.C.R.
A since the said question was not raised and considered in the
order of Reference reported as Union of India v. V. Sriharan
alias Murugan & Ors.(supra). and that when notice was
issued in the Writ Petition to all the States on 09.07 .2014 then.
also this question was not considered, that the scheme of Code
B of Criminal Procedure was to protect the interest of victims at
the hands of accused which onerous responsibility is cast on
the agency of the Central Government, namely, the CBI which
took over the investigation on the very next day of the crime
and, therefore, the Union of India has every locus to file the writ
C petition, that since the issue raised in the Writ Petition cannot
be worked out by way of suit under Article 131 of the
Constitution since the accused are private parties, Writ Petition
is the only remedy available, that after the questions of general
importance are answered, the individual cases will go before
o the Regular Benches and, therefore, the Union of India is only
concerned about the questions of general importance and
lastly if Union of India is held to be the Appropriate Government
in a case of this nature, then the State will be denuded of all
powers under Sections 432/433 Code of Criminal Procedure
E and consequently any attempted exercise will fall to the ground.
4. Mr. Rakesh Dwivedi, learned Senior Counsel who
appeared forthe State of Tamil Nadu would, however, contend
that the Writ Petition does riot reflect any violation of
fundamental right for invoking Article 32, that the maintainability
F question was raised as could be seen from the additional
grounds raised by the Union of India in the Writ Petition itself
though the question was not considered in the order of
Reference. Mr. Ram Jethmalani, learned Senior Counsel who
appeared for the private respondent(s) by referring to Articles
G 143 and 145(3) read along with the proviso to the said sub-
Article submitted that when no question of law was likely to
arise, the referral itself need not have been made and,
therefore, there is nothing to be answered. By referring to each
of the sub-paragraphs in paragraph 52 of the Reference order,
H
UNION OF INDIAv. V. SRIHARAN @MURUGAN 631
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
the learned Senior Counsel submitted that none of them would A
fall under the category of Constitutional question and, therefore,
the Writ Petition was not maintainable. The learned Senior
Counsel by referring to the correspondence exchanged
between the State and the Union of India and the judgment
reported as V. Sriharan alias Murugan v. Union of India & B
Ors. (supra) by which the sentence was commuted by this
Court as stated in particular paragraph 32 of the said judgment,
contended that in that judgment itself while it was held that
commutation was made subject to the procedural checks
mentioned in Section 432 and further substantive check in c
Section 433-A of the Code there is nothing more to be
considered in this Writ Petition.
5. Having considered the objections raised on the ground
of maintainability, having heard the respective counsel on the
said question and having regard to the nature of issues which D
have been referred for consideration by this Constitution
Bench, as rightly contended by the learned Solicitor General,
we are also convinced that answer to those questions would
involve substantial questions of law as to the interpretation of
Articles 72, 73, 161 and 162, various Entries in the Seventh E
Schedule consisting of Lists I to Ill as well as the corresponding
provisions of Indian Penal Code and Code of Criminal
Procedure and thereby serious public interest would arise for
consideration and, therefore, we do not find it appropriate to
reject the Reference on the narrow technical ground of F
maintainability. We, therefore, proceed to find an answer to
the questions referred for consideration by this Constitution
Bench.
6. Having thus steered clear of the preliminary objections
raised by the respondents on the ground of maintainability even G
before entering into the discussion on the various questions
referred, it will have to be stated that though in the Writ Petition
the challenge is to the letter of State of Tamil Nadu dated
19.02.2014, by which, before granting remission of the
H
632 SUPREME COURT REPORTS [2015] 14 S.C.R.
A sentences imposed on the private respondent Nos.1 to 7, the
State Government approached the Union of India by way of
'Consultation' as has been stipulated in Section 435(1) of
Cr.P.C, the questions which have been referred for the
consideration of the Constitution Bench have nothing to do
B with the challenge raised in the Writ Petition as against the
letter dated 19.02.2014. Therefore, at this juncture we do not
propose to examine the correctness or validity or the power of
the State of Tamil Nadu in having issued the letter dated
19.02.2014. It may be, that depending upon the ultimate
c answers rendered to the various questions referred for our
consideration, we ourselves may deal with the challenge raised
as against the letter of the State Government dated 19.02.2014
or may leave it open for consideration by the appropriate
Bench which may deal with the Writ Petition on merits.
D 7. In fact in this context, the submission of Learned
Solicitor General that the answers to the various questions
referred for consideration by the Constitution Bench may throw
light on individual cases which are pending or which may arise
in future for being dispo!!ed of in tune with the answers that
E may be rendered needs to be appreciated.
8. Keeping the above factors in mind, precisely the nature
of questions culminates as follows:
(i) As to whether the imprisonment for life means till the
F end of convict's life with or without any scope for ..
remission?
(ii) Whether a speci(!I category of sentence instead of
death for a term exceeding 14 years can be made by
putting that category beyond grant of remission?
G
(iii) Whether the power under Sections 432 and 433 Code
of Criminal Procedure by Appropriate Government
would be available even after the Constitutional power
under Articles 72 and 161 by the President and the ..
Governor is exercised as well as the power exercised
H
UNION OF INDIA v. V. SRI HARAN @ MURUGAN 633
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
by this Court under Article 32? A
(iv)Whether State or the Central Government have the
primacy under Section 432(7) of Code of Criminal
Procedure?
(v) Whether there can be two Appropriate Governments B
under Section 432(7)?
(vi)Whether power under Section 432(1) can. be
exercised suo motu without following the procedure
prescribed under section 432(2)?
(vii)Whether the expression "Consultation" stipulated in C
435(1) really means "Concurrence"?
9. In order to appreciate the various contentions raised
on the above questions by the respective parties and also to
arrive at a just conclusion and render an appropriate answer, o
it is necessary to note the relevant provisions in the
Constitution, the Indian Penal Code and the Code of Criminal
Procedure The relevant provisions of the Constitution which
require to be noted are Articles 72, 73, 161, 162, 246(4),
245(2), 249, 250 as well as some of the Entries in List I, II and E
Ill of the Seventh Schedule. In the Indian Penal Code the relevant
provisions required to be stated are Sections 6, 7, 17, 45, 46,
53, 54, 55, 55A, 57, 65, 222, 392, 457, 458, 370, 376A 376B
and 376E. In the Code of Criminal. Procedure, the provisions
relevant for our purpose are Sections 2(y), 4, 432, 433, 434, F
433A and 435. The said provisions can be noted as and when
we examine those provisions and make an analysis of its
application in the context in which we have to deal with those
provisions in the case on hand.
10. Keeping in.mind the above perception, we proceed G
to examine the provisions contained in the Constitution.Artklles
72, 73, 161and162 of the Constitution read as under:
"Article 72.- Power of President to grant pardons,
etc., and to suspend, remit or commute sentences
H
634 SUPREME COURT REPORTS [2015] 14 S.C.R.
A in certain cases .• ( 1) the President shall have the power
to grant pardons, reprieves, respites or remissions of
punishment or to suspend, remit or commute the
sentence of any person convicted of any offence-
(a) In all cases where the punishment or sentence is
B by a Court Martial ;
(b) In all cases where the punishment or sentence is
for an offence against any law relating to a matter
to which the Executive Power of the Union extends;
c (c)ln all cases where the sentence is a sentence of
death.
(2) Nothing in sub-clause (a) of clause (1) shall affect the
power conferred by law on any officer of the Armed
Forces of the Union to suspend, remit or commute a
D sentence passed by a Court martial.
(3) Nothing in sub-clause (c) of clause (1) shall affect the
power to suspend, remit or commute a sentence of death
exercisable by the Governor ofa State under any law for
E the time being in force."
Article 73. Extent of executive power of the Union
(1) Subject to the provisions of this Constitution, the
executive power of the Union shall extend-
F (a) to the matters with respect to which Parliament has
power to make laws; and
(b) to the exercise of such rights, authority and jurisdiction
as are exercisable by the Government of India by virtue
of any treaty or agreement:
G
-
Provided that the executive power referred to in sub-
clause (a) shall not, save as expressly provided in this
Constitution or in any law made by Parliament, extend in
any State to matters with respect to which the Legislature
of the State has also power to make laws.
H
UNION OF INDIA v. V. SRI HARAN@ MURUGAN 635
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
(2) Until otherwise provided by Parliament, a State and A
any officer or authority of a State may, notwithstanding
anything in this article, continue to exercise in matters
with respect to which Parliament has power to make laws
for that State such executive power or functions as the
State or officer or authority thereof could exercise B
immediately before the. commencement of this
Constitution.
Article 161.- Power of Governor to grant pardons,
etc., and to suspend, remit or commute sentences
in certain cases C
The Governor of a State shall have the power to grant
pardons, reprieves, respites or remissions of punishment
or to suspend, remit or commute the sentence of any
person convicted of any offence against any law relating 0
to a matter to which the executive power of the State
extends.
Article 162.· Extent of executive power of State
Subject to the provisions of this Constitution, the
executive power of a State shall extend to the matters E
with respect to which the Legislature of the State has
power to make laws:
Provided that in any matter with respect to which the
Legislature of a State and Parliament have power to F
make laws, the executive power of the State shall be
subject to, and limited by, the executive power expressly
conferred by this Constitution or by any law made by
Parliament upon the Union or authorities thereof.
11, Under Article 72, there is all pervasive power with G
the President as the Executive Head of the Union as stated
under Article 53, to grant pardons, reprieves, respite and
remission of punishments apart from the power to suspend,
remit or commute the sentence of any person convicted of any
H
636 SUPREME COURT REPORTS ~ [2015] 14 S.C.R.
A offence. Therefore, the substantive part of sub-Article (1 ), when
read, shows the enormous Constitutional power vested with
the President to do away with the conviction imposed on any
person of any offence apart from granting the lesser relief of
reprieve, respite or remission of punishment. The power also
B includes power to suspend, remit or commute the sentence of
any person convicted of any offence. Sub-Article (1 ), therefore,
discloses that the power of the President can go to the extent
of wiping of the conviction of the person of any offence by
granting a pardon apart from the power to remit the punishment
C or to suspend or commute the sentence.
12, For the present purpose, we do not find any need to
deal with Article 72(1 )(a). However, we are very much
concerned with Article 72(1 )(b) which has to be read along
with Article 73 of the Constitution. Reading Article 72(1 )(b) in
D isolation, it prescribes the power of the President for the grant
of pardon, reprieve, remission, commutation etc. in all cases
where the punishment or sentence is for an offence against
any law relating to a matter to which the Executive Power of
the Union extends. In this context when we refer to sub-Article
E (1) (a) of Article 73 which has set out the extent of Executive
Power of the Union, it discloses that the said power is
controlled only by the proviso contained therein. Therefore,
reading Article 72(1 )(b) along with Article 73(1 )(a) in respect
of a matter in which the absolute power of the President for
F grant of pardon etc. will remain in the event of express
provisions in the Constitution or in any law made by the
Parliament specifying the Executive Power of the Centre so
prescribed. When we refer to Article 72(1 )(c) the power of the
President extends to all cases where the sentence is a
G sentence of death.
13. When we examine the above all pervasive power
vested with the President, a small area is carved out under
Article 72(3), wherein, in respect of cases where the sentence
H is a sentence of death, it is provided that irrespective of such
UNION OF INDIA v. V. SRI HARAN @ MURUGAN 637
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.)
enormous power vested with the President relating to cases A
where sentence of death is the punishment, the power to
suspend, remit or commute a sentence of death by the
Governor would still be available under any law for the time
being in force which fall within the Executive Power exercisable
by the Governor of the State. Article 72(1 )(c) read along with B
Article 72(3) is also referable to the proviso to Article 73(1) as
well as Articles 161 and 162.
14. When we read the proviso, while making reference
to the availability of the Executive Power of the Union under
Article 73(1 )(a), we find a restriction imposed in U.1e exercise C
of such power in any State with reference to a matter with
respect to which the Legislature of the State has also power to
make laws, save as expressly provided in the Constitution or
any law made by the Parliament conferment of Executive
Power with the Centre. Therefore, the exercise of the Executive D
Power of the union under Article 73(1 )(a) would be subject to
the provisions of the said saving clause vis-a-vis any State.
Therefore, reading Article 72(1 )(a) and (3) along with the
proviso to Article 73(1 )(a) it emerges that wherever the
Constitution expressly provides as such or a law is made by E
the Parliament that empowers all pervasive Executive Power
of the Union as provided under Article 73(1 )(a), the same could
be extended in any State even if the dual power to make laws
are available to the States as well.
F
15. When we come to Article 161 which empowers the
Governor to grant pardon etc. which is more or less identical
to the power vested with the President under Article 72, though
not to the full extent, the said Article empowers the Governor
of a State to grant pardon, respite, reprieve or remission or to G
suspend, remit 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. It will be
. necessary to keep in mind while reading Article 161, the nature
and the extent to which the extended Executive Power of the
H
' ; ;
638 SUPREME COURT REPORTS [2015] 14 S.C.R.
A Union is available under Article 73(1 )(a), as controlled under
the proviso to the said Article.
16. Before deliberating upon the extent of Executive
power which can also be exercised by the State, reference
should also be made to Article 162 which prescribes the extent
B of Executive Power of the State. The Executive Power of the
State under the said Article extends to the matters with respect
to which the Legislature of the State has power to make laws.
The proviso to Article 162 which is more or less identical to
the words expressed in the proviso to Article 73(1 )(a) when
C applied would result in a situation where the result of the
consequences that would follow by applying the proviso to
Article 73(1 )(a) would be the resultant position.
17. Pithily stated under the proviso to Article 73(1 )(a)
where there is an express provision in the Constitution or any
0
law is made by the Parliament, providing for specific Executive
Power with the Centre, then the Executive Power referred to
in sub-clause (a) of sub-article (1) of Article 73 would be
available to the Union and would also extend in any State to
E matters with respect to which the Legislature of the State has
also powers to make laws. In other words, it can be stated
that, in the absence of any such express provision in the
Constitution or any law made by the Parliament in that regard,
the enormous Executive Power of the Union stipulated in Article
F 73(1 )(a), would not be available for the Union to be extended
to any State to matters with respect to which the Legislature of
the State has also powers to make laws. To put it differently, in
order to enable the Executive Power of the Union to extend to
any State with respect to which the Legislature of a State has
also got power to make laws, there must be an express
G provision providing for Executive Power in the Constitution or
any law made by the Parliament. Therefore, the said
prescription, namely, the saving clause provided in the proviso
to Article 73(1 )(a) will be of paramount consideration for the
H
UNION OF INDIAv. V. SRI HARAN@ MURUGAN 639
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
Union to exercise its Executive Power while examining the A
provision providing for the extent of Executive Power of the
State as contained in Article 162.
18. Before examining the questions referred for
consideration, it will be necessary to make a detailed analysis
of the Constitutional and statutory provisions that would be B
required to be applied. When we refer to Article 161, that is
the power of the Governor to grant pardon _etc., as well as to
suspend, remit etc., the last set of expressions contained in
the said Article, namely, "to a matter to which the Executive
Power of the State extends", makes it clear that the exercise · C
of such power by the Governor of State is restricted to the
sentence of any person convicted of any offence against any
law relating to a matter to which the Executive Power of the
State is extended. In other words, such power of the.Governor
is regulated by the Executive Power of the State as has been D
stipulated in Article 162. In turn, we have to analyze the extent,
to which the Executive Power of the Union as provided under
Article 73(1 )(a) regulated by the proviso to the said sub-article
(1 ), which stipulates that the overall Executive Power of the
Union is regulated to the extent to which the legislature of State E
has also got the power to make laws subject, however, to the
express provisions in the Constitution or in any law made by
Parliament. The proviso to Article 162 only re-emphasizes the
said extent of coextensive legislative power of the State to
make any laws at par with the Parliament which again will be F
subject to, as well as, limited by the express provision providing
for Executive Power with the Centre in the Constitution or in
any law made by Parliament upon the Union or its authorities.
In respect of the punishments or convictions of any offence
against any law relating to a matter to which the Executive G
Power of the State extends, the power of pardon etc. or power
to suspend or remit or commute etc., available to the Governor
of a State under Article 161 would be available as has been
stipulated therein.
H
640 SUPREME COURT REPORTS (2015] 14S.C.R.
A 19. In this respect, when we examine the opening set of
expressions in Article 73(1 ), namely:
"subject to the provisions of this Constitution, the
Executive Power of the Union extend .......... "
B It will be appropriate to refer to Articles 246(4 ), 245(2),
249 and 250. Each of the said Articles will show the specific
power conferred on the Union in certain extraordinary situations
as well as, in respect of areas which remain untouched by any
of the States. Such.powers referred to in these Articles are de
c hors the specific power provided under Article 73(1 )(a), namely,
with respect to matters for which Parliament has power to make
laws.
20. In this context, it will also be relevant to analyze the
scope of Article 162 which prescribes the extent of Executive
D Power of the State. Proviso to Article 162 in a way slightly
expands the Executive Power of the Union with respect to
matters to which the State Legislature as well as the Parliament
has power to make laws. In such matters the Executive Power
of the State is limited and controlled to the extent to which the
E power of the Union as well as its authorities are expressly
conferred by the Constitution or the laws made by Parliament.
21. If we apply the above Constitutional prescription of
the Executive Power of the Union vis-a-vis the Executive Power
of the State in the present context with which we are concerned,
F namely, the power of remission, commutation etc., it is well
known that the powers relating to those actions are contained,
governed and regulated by the provisions under the Criminal
Procedure Code, which is the law made by Parliament covered
by Entry 1 in List Ill (viz.), Concurrent List of the Seventh
G Schedule of the Constitution. What is prescribed in the proviso
to Article 73(1 )(a) is in relation to "matters with respect to which
the legislature of the State has also power to make laws"
(Emphasis supplied). In other words, having regard to the fact
that 'criminal law is one of the items prescribed in List Ill, under
H
UNION OF INDIA v. V. SRI HARAN @MU RU GAN 641
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
Article 246(2), the State Legislature has also got power to A
make laws in that subject. It is also to be borne in mind that
The Indian Penal Code and The Code of Criminal Procedure
are the laws made by the Parliament.
22. Therefore, the resultant position would be th·at, the
Executive Power of the Union and its authorities in relation to 8
grant of remission, commutation etc., are available and can
be exercised by virtue of the implication of Article 73(1 )(a) read
along with its proviso and the exercise of such power by the
State would be controlled and limited as stipulated in the
proviso to Article 162 to the extent to which such control and C
limitations are prescribed in the Code of Criminal Procedure.
23. On an analysis of the above-referred Constitutional
provisions, namely, 72, 73, 161 and 162 what emerges is:
(a) The President is vested with the power to grant D
pardons, reprieves, respites or remissions of
punishment or to suspend, remit or commute the
sentence of any person convicted of any offence in all
cases where the punishment or sentence is for an
offence against any law relating to a matter to which E
the Executive Power of the Union extend.s as has been
provided under Article 73(1 )(a) subject, however, to
the stipulations contained in the proviso therein.
(b) Insofar as cases where the sentence is sentence of
death such power to suspend, remit or commute the F
sentence provided under Article 72( 1) would be
available even to the Governor of a State wherever
such sentence of death came to be made under any
law for the time being in force.
G
(c) The Executive Power of the Union as provided under
Article 73(1 )(a) will also extend to a State if such
Executive Power is expressly provided in the
Constitution or in any law made by the Parliament even
with respect to matters with respect to which the H
642 SUPREME COURT REPORTS [2015] 14 S.C.R.
A Legislature of a State has also got the power to make
laws.
(d)The power of the Governor of any State to grant pardon
etc., or to suspend, remit or commute sentence etc.,
would be available in respect of sentence of any person
B convicted of any offence against any law relating to a
matter to which the Executive Power of the State
extends and not beyond.
(e)The extent of Executive Power of the State which
c extend to all matters with respect to which the
legislature of the State has power to make laws is,
however, subject to and limited by the Executive Power
expressly conferred under the Constitution or by any
law made by Parliament upon the Union or the
D authorities of the Union.
24. Keeping the above legal principles that emerge from
a reading of Articles 72, 73, 161 and 162, further analysis will
have to be made as to the extent to which any such restrictions
have been made providing for exclusive power of the Union or
E co-extensive power of the State under the Constitution as well
as the laws made by the Parliament with reference to which
the Legislature of the State has also got the power to make
laws.
25. The express provision contained in the Constitution
F prescribing the Executive Power of the Union as well as on its
authorities can be found in Article 53. However, the nature of
power stated therein has nothing to do with the one referred to
either in Article 73 (1 )(a) or 162 of the Constitution. Under
Articles 53 and 156 of the Constitution, the Executive Power
G of the Union and the State are to be exercised in the name of
the President and the Governor of the State respectively.
Though, under Articles 123, 213 and 2398 of the Constitution,
the power to issue Ordinance is vested with the President, the
H
UNION OF INDIA v. V. SRIHARAN@ MURUGAN 643
[FAKKIR MOHAMEG IBRAHIM KALIFULLA, J.]
Governor and the Administrator of the Union, the State and the A
Union Territory of Puducherry respectively by way of an
executive action, this Court has clarified that the exercise of
such power would be on par with the Legislative action and
not by way of an administrative action, Reference can be had
to the decisions reported as K. Nagaraj and others v. State B
of Andhra Pradesh and another -1985(1) SCC 523 @ 548
paragraph 31 and T. Venkata Reddy and others v. State of
Andhra Pradesh -1985(3) SCC 198 paragraph 14.
26. Under Article 246(2) of the Constitution, Parliament
and the State have equal power to make laws with respect to C
any of the matters enumerated in List Ill of the Seventh
Schedule. Under Article 246(4 ), the Parliament is vested with
the power to make laws for any part of the territory of India
which is not part of any State. Article 24 7 of the Constitution is
.referable to Entry 11Aof List Ill of Seventh Schedule. The said D
Entry is for administration of justice, Constitution and
organization of all Courts, except the Supreme Court and the
High Courts. Under Article 247, Parliament is empowered to
provide for establishment of certain additional Courts.
Whereas under Articles 233, 234 and 237 falling under E
Chapter VI of the Constitution appointment of District Judges,
recruitment of persons other than District Judges,"their service
conditions and application of the provisions under the said
Chapter are all by the Governor of the State as its Executive
Head subject, however in 'Consultation' with the High Court F
exercising jurisdiction in relation to such State. Here and now
it can be noted that having regard to the specific provisions
contained in Article 247 of the Constitution, the Central
Government may enact a law-providing for establishment of
additional Courts but unless the Executive Power of the Union G
to the specific extent is expressly provided in the said Article
or in the Statute if any, enacted for making the appointments
then the saving clause under the proviso to Article _73(1) (a)
will have no application.
H
644 SUPREME COURT REPORTS (2015] 14 S.C.R.
A 27. Under Articles 249 and 250 of the Constitution,
Parliament is empowered to legislate with respect to a matter
in the State List in the National Interest and if a Proclamation
of Emergency is in operation. Therefore, in exercise of said
superscriptive power any law is made, it must be stated that
B exercise of any action by way of executive action would again
be covered by the proviso to Article 73( 1)(a) of the Constitution.
Similarly, under Article 251 of the Constitution where any
inconsistency between the laws made by Parliament under
Articles 249 and 250 and the laws made by State Legislature,
c the laws made by the Parliament whether made before or after
the laws made by the State would to the extent of repugnancy
prevail so lorig as the law made by the Parliament continues
to have effect. Under Article 252 of the Constitution, de hors
the powers prescribed under Articles 249 and 250, with the
o express resolution of two or more of State Legislatures, the
Parliament is empowered to make laws applicable to such
States. Further any such laws made can also be adopted by
such other States whose Legislature passes necessary
resolution to the said effect. Here again in the event of such
E situations governed by Articles 251 and 252 of Constitution
emerge, the saving clause prescribed in the proviso to Article
73(1 )(a) will have application.
28. Irrespective of special situations under which the laws
made by the Parliament would prevail over any State to the
F extent of repugnancy, as stipulated in Articles 249, 250 and
251 of the Constitution, Article 254 provides for supervening
power of the laws made by the Parliament by virtue of its
competence, in respect of Entries found in the Concurrent List
if any repugnancy conflicting with the such laws of Parliament
G by any of the laws of the State is found, to that extent such laws
of the State would become inoperative and the laws of the
Parliament would prevail, subject, however, to stipulations
containe~ in sub-Article (2) of Article 254 and the proviso.
H
UNION OF INDIAv. V. SRIHARAN @MURUGAN 645
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
29. Article 256 of the Constitution is yet another A
superscriptus (Latin) Executive Power of the Union obligating
the Executive Power of the State to be subordinate to such
power. Under the head Administrative relations falling under
Chapter II of Part XI of the Constitution, Articles 256, 257, 258
and 258Aare placed. Article 257(1) prescribes the Executive B
Power of the State to ensure that it does not impede or
prejudice the exercise of the Executive Power of the Union
apart from the authority to give such directions to State as may
appear to the Government of India to be necessary for that
purpose. Under Article 258, the Executive Head of the Union, C
namely, the President is empowered to confer the Executive
Power of the Union on the States in certain cases. A converse
provision is contained in Article 258A of the Constitution by
which, the Executive.Head of the State, namely, the Governor
can entrust the Executive Power of the State with the Centre. o
. Here again, we find that all these Articles are closely referable
to the saving clause provided under the proviso to Article
73(1 )(a) of the Constitution.
30. The saving clause contained in Article 277 of the
Constitution is yet another provision, whereunder, the authority E
of the Union in relation to levy of taxes can be allowed to be
continued to be levied by the States and the local bodies,
having regard to such levies being in vogue prior to the ·
commencement of the Constitution. However, the Union is
empowered to assert its authority by making a specific law to F
.that effect by the Parliament under the very same Article.
31. Under the head 'Miscellaneous Financial Provisions'
the Union or the State can make any grant for any public
purpose, notwithstanding that the purpose is not one with
respect to which Parliament. or the Legislative of the State, as G
the case may be, can make laws.
32. Article 285 of the Constitution is yet another provision
where the power of the Union to get its properties lying in a
H
646 SUPREME COURT REPORTS [2015] 14 S.C.R.
A State to be exempted from payment of any tax. Similarly, under
Article 286 restrictions on the State as to imposition of tax on
the sale or purchase of goods outside the State is prescribed,
which can be ascribed by a law of the Parliament.
33. Article 289 prescribes the extent of the executive and
B legislative power of the Union and the Parliament in relation to
exemption of property and income of a State from Union
taxation.
34. The Executive Power of the Union and of each State
c as regards carrying on of any trade or business as to the
acquisition, holding and disposal of property and the making
of contracts for any purpose is prescribed under Article 298.
35. The above Articles 277, 282, 285, 286 and 289 fall
under Part XII, Chapter I and Article 298 under Chapter Ill.
D
36. Articles 302, 303, 304 and 307 falling under Part XIII
of the Constitution read along with Entry 42 of List I, Entry 26
of List II and Entry 33 of List 111 provides the relative and
corresponding executive and legislative power of the Union
and the States with reference to Trade, Commerce and
E intercourse within the territory of India.
37. Articles 352 and 353 of the Constitution falling under
Part XVIII of the Constitution prescribe the power of the
President to declare Proclamation of Emergency under certain
F contingencies and the effect of proclamation of emergency.
Under Article 355 of the Constitution, the duty has been cast
on the Union to protect every State against external aggression
and internal disturbance and to ensure that the Government of
every State is carried on in accordance with the provisions of
G the Constitution.
38. Article 369 of the Constitution falling under Part XXI
empowers the Parliament to make laws with respect to certain
matters in the State Lists for a limited period of five years and
to cease after the said period by way of temporary and
H transitional measure.
UNION OF INDIA v. V. SRI HARAN@ MURUGAN 64 7
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
39. Thus a close reading of the various Constitutional A
provisions on the Executive Power of the Centre and the State
disclose the Constitutitmal scheme of the framers of the ,_
Constitution to prescribe different types of such Executive
Powers to be exercised befitting different situations. However,
the cardinal basic principle which weighed with the framers of B
the Constitution in a democratic federal set up is clear to the
pointer that it should be based on "a series of agreements as
well as series of compromises". In fact, the temporary
Chairman of the Constituent Assembly, the Late Dr.
Sachidananda Sinha, the oldest Parliamentarian in India, by c
virtue of his long experience, advised; "that reasonable
agreements and judicious compromises are nowhere more
called for than in framing a Constitution for a country like India".
His ultimate request was that; "the Constitution that you are
going to plan, may similarly be reared for 'immortality', if the D
rule.of man may justly aspire to such a title, and it may be a
structure of adamantine strength, which will outlast and
overcome all present and future destructive forces". With those
lofty ideas, the Constitution came to be framed.
40. We are, therefore, able to discern from a reading of E
the various provisions of the Constitution referred to above, to
be read in conjunction with Articles 72, 73, 161and162, which
disclose the dichotomy of powers providing for segregation,
combination, specific exclusion (temporary or permanent),
interrelation, voluntary surrender, one time or transitional or F
temporary measures, validating, superscriptus, etc. We are
also able to clearly note that while the Executive Power of the
State is by and large susceptible to being controlled by the
Executive Power of the Union under very many circumstances
specifically warranting for such control, the reverse is not the G
case. It is quite apparent that while the federal fabric of the set
up is kept intact, when it comes to the question of National
Interest or any other emergent or unforeseen situations
warranting control in the nature of a super-terrestrial order
H
648 SUPREME COURT REPORTS [2015] 14 S.C.R.
A (celestial) the Executive Power of the Union can be exercised
like a bull in the China shop.
41. At the risk of repetition we can even quote some of
such provisions in the Constitution which by themselves
expressly provide for such supreme control, as well as, some
B other provisions which enable the Parliament to prescribe such
provisions by way of an enactment as and when it warrants.
For instance, under Article 24 7 of the Constitution, by virtue of
Entry 11Aof List Ill of the Seventh Schedule, the Parliament is
empowered to provide for establishment of certain additional
C Courts at times of need. In fact, it can be validly stated that the
establishment of Fast Track Courts in the various States and
appointment of ad hoc Judges at the level of Entry level District
Judges though not in the cadre strength, came to be made
taking into account the enormous number of undertrial
D prisoners facing Sessions cases of grievous offences in
different States. This is one such provision which expressly
· provided for remedying the situation in the Constitution itself
specifically covered by the proviso to Article 73(1 )(a) and the
proviso to Article 162 of the Constitution. Similar such
E provisions in the Constitution containing express powers can
be noted in Articles 256, 257, 258, 285 and 286 of the
Constitution. We can quote any number such Articles
specifically and expressly providing for higher Executive Power
of the Union governed by Article 73(1 )(a) of the Constitution.
F
42. Quite apart, we can also cite some of the Articles
under which the Parliament is enabled to promulgate laws
which can specifically provide for specific Executive Power
vesting with the Union to be exercisable in supersession of
G the Executive Power of the State. Such provisions are contained
in Articles 246(2), 249, 250, 277, 286 and 369 of the
Constitution.
43. Having thus made an elaborate analysis of the
Constitutional provisions relating to the relative Executive
H
UNION OF INDIA v. V. SRI HARAN@ MURUGAN 649
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
Power of the Union and the State as it exists and exercisable A
by the respective authorities in the given situations, we wish to
examine the provisions specifically available in the Indian
Penal Code, Criminal Procedure Code, as well as the Special
enactment, namely, the Delhi Special Police EstablishmentAct
under which the CBI operates, to understand the extent of B
powers exercisable by the State and the Centre in order to
find an answer to the various questions referred for our
consideration .
• 44. In the Indian Penal Code, the provisions for our
purpose can be segregated into two categories, namely, those C
by which various terms occurring in the Penal Code are defined
or explained and those which specifically provide for particular
nature of punishments that can be imposed for the nature of
offence involved. Sections 17, '45, 46, 53, 54, 55, 55A are
some of the provisions by which the expressions occurring in D
the other provisions of the Code are defined or explained.
Under Section 17, the word 'Government' would mean the
'Central Government' or the 'State Government'. Under Section
45, the expression 'life' would denote the life of a human being,
unless the contrary appears from the context. Similarly, the E
expression 'death' would mean death of a human being unless
the contrary appears from the context. Section 53 prescribes
five kinds of punishments that can be imposed for different
offences provided for in the Penal Code which ranges from
the imposition of 'fine' to the capital punishment of 'death'. F
Section 54 empowers the Appropriate Government to
commute the punishment of death imposed on an offender for
any other punishment even without the consent of the offender.
Similar such power in the case of life imprisonment is
prescribed under Section 55 to be exercised by the G
Appropriate Government, but in any case for a term not
exceeding fourteen years. Section 55A defines the term
"Appropriate Governmenf' with particular reference to Sections
54 and 55 of the Penal Code.
H
650 SUPREME COURT REPORTS [2015] 14 S.C.R.
A 45. Having thus noted those provisions which highlight
the various expressions used in the Penal Code to be
understood while dealing with the nature of offences committed
and the punishments to be imposed, the other provisions which
specify the extent of punishment to be imposed are also
B required to be noted. For many of the offences, the prescribed
punishments have been specified to be imposed upto a certain
limit, namely, number of years or fine or with both. There are
certain offences for which it is specifically provided that such
punishment of imprisonment to be either life or a specific terITT,
c namely, seven years or ten years or fourteen years and so on.
To quote a few, under Section 370(5); (6) and (7) for the offence
of trafficking in person, such punishments shall not be less than
fourteen years, imprisonment for life to mean imprisonment
for the remainder of that person's natural life apart from fine.
D Similar such punishments are provided under Sections 376(2),
376A, 376D and 376E.
46. At this juncture, without going into much detail, we
only wish to note that the Penal Code prescribes five different
punishments starting from fine to the imposition of capital
E punishment of Death depending upon the nature of offence
committed. As far as the punishment of life imprisonment and
death is concerned, it is specifically explained that it would
mean the life of a human being or the death of a human being,
with a rider, unless the contrary appears from the context, which
F means something written or spoken that immediately precede
or follow or that the circumstances relevant to something under
consideration to be seen in the context. For instance, when
we refer to the punishment provided for the offence under
Section 376A or 376D while prescribing life imprisonment as
G the maximum punishment that can be imposed, it is specifically
stipulated that such life imprisonment would mean for the
remainder of that person's natural life. We also wish to note
that under Sections 54 and 55 of the Penal Code, the power
of the Appropriate Government to commute the Death
H
UNION OF INDIAv. V. SRIHARAN@MURUGAN 651
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
sentence and life sentence is provided which exercise of power A
is more elaborately specified in the Code of Criminal
Procedure. While dealing with the provisions of Criminal
Procedure Code on this aspect we will make reference to such
of those provisions in the Penal Code which are required to
be noted and considered. In this context, it is also relevant to B
note the provisions in the Penal Code wherein the punishment
of death is provided apart from other punishments. Such
provisions are Sections 1208(1 ), 121, 132, 194, 195A, 302,
305, 307, 376A, 376E, 396 and 364A. The said provisions
are required to be read along with Sections 366 to 371 and C
392 of Code of Criminal Procedure. We will make a detailed
reference to the above provisions of Penal Code and Code of
Criminal Procedure while considering the second part of the
first question referred for our consideration.
47. When we come to the provisions of Criminal D
Procedure Code, for our present purpose, we may refer to
Sections 2(y), 432, 433, 433A, 434 and 435. Section 2(y) of
the Code specifies that words and expressions used in the
Code and not defined but defined in the Indian Penal Code
(45of1860) will have the same meaning respectively assigned E
to them in that Code. Section 432 prescribes the power of the
Appropriate Government to suspend or remit sentences.
Section 432 (7) defines the expression 'Appropriate
Government' forthe purpose of Sections 432 and 433. Section
433 enumerates the power of the Appropriate Government for F
commutation of sentences, namely, fine, simple imprisonment,
rigorous imprisonment, life imprisonment as well as the
punishment of death. Section 433A which came to be inserted
by Act 45 of 1978 w.e.f. 18.12.1978, imposes a restriction on
the power of Appropriate Government for remissions or G
suspensions or commutation of punishments provided under
Sections 432 and 433 by specifying that exercise of such power
in relation to the punishment of death or life imprisonment to
ensure at least fourteen years of imprisonment. Under Section
H
652 SUPREME COURT REPORTS [2015] 14 S.C.R.
A 434 in regard to sentences of death, concurrent powers of
Central Government are prescribed which is provided for in
Sections 432 and 433 upon the State Government. Section
435 of the Code imposes a restriction upon the State
Government to consult the Central Government while exercising
B its powers under Sections 432 and 433 of the Code under
certain contingencies.
48. In the case on hand, we are also obliged to refer to
the provisions of the Delhi Special Police Establishment Act
of 1946 (hereinafter referred to as the "Special Act") as the
C Reference which arose from the Writ Petition was dealt with
under the said Act. The Special Act came to be enacted to
make provision for the Constitution of special force in Delhi
for the investigation of certain offences in the Union Territory.
Under Section 3 of the Special Act, the Central Government
D can, by Notification in the official Gazette, specify the offences
or classes of offences which are to be investigated by the Delhi
Special Police Establishment. Under Section 4, the
superintendence of the Delhi Special Police Establishment
vests with the Central Government. Section 5 of the Special
E Act, however, empowers the Central Government to extend
the application of the said Act to any area of any State other
than Union Territories, the powers and jurisdiction of the
members of the Special Police Establishment for the
investigation of any offences or classes of offences specified
F in a Notification under Section 3. However, such empowerment
on the Central Government is always subject to the consent of
the concerned State Government over whose area the Special
Police Establishment can be allowed to operate.
49. Having noted the scope and ambit of the said Special
G Act, it is also necessary for our present purpose to refer to the
communication of the Principal Secretary (Home) to
Government of Tamil Nadu addressed to the Joint Secretary
to Government of India, Department of Personal and Training
H
UNION OF INDIAv. V. SRIHARAN@MURUGAN 653
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
dated 22.05.1991 forwarding the order of Government of Tamil A
Nadu, conveying its consent under Section 6 of the Special
Act for the extension of the powers and jurisdiction of members
of Special Police Establishment to investigate the case in
Crime No.329/91 under Sections 302, 307, 326 IPC and under
Sections 3 and 5ofThe Indian Explosive Substances Act, 1908 8
registered in Sriperumbudur P.S., Changai Anna (West)
District, Tamil Nadu relating to the death of Late Rajiv Gandhi,
former Prime Minister of India on 21.05.1991. Pursuant to the
said communication and order of State of Tamil Nadu dated
22.05.1991, the Government of India, Ministry of Personnel, C
Public Grievances and Pensions, Department of Personnel
and Training issued the Notification dated 23'd May, 1991
extending the powers and jurisdiction ofthe members of the
Delhi Special Police Establishment to the whole of the State
of Tamil Nadu for investigation of the offences registered in D
Crime No.329/91 in Sriperumbudur Police Station of Changai
Anna (West) District of Tamil Nadu. Relevant part of the said
Notification reads as under:-
"a) Offences punishable under Section 3.02, 307, 326 of
the Indian Penal Code, 1860 (Act No.45 of 1860) and E
under Section 5 and 6 of the Indian Explosive Substances
Act 1908 (Act No.6 of 1903) relating to case in Crime
No.329/91 registered in Sriperumbudur Police Station
Changai-Anna (West) District, Tamil Nadu;
F
b)Attempts, abetments and conspiracies in relation to
or in connection with the offences mentioned above and
any other offence or offences committed in the course of
the same transaction arising out of the same facts."
50. Having thus noted the relevant provisions in the G
Constitution, the Penal Code, Code of Criminal Procedure and
the Special Act, we wish to deal with the question referred for
our consideration in seriatim. The first question framed for the
consideration of the Constitution Bench reads as under:
H
654 SUPREME COURT REPORTS (2015) 14 S.C.R.
A 'Whether imprisonment for life in terms of Section 53
read with Section 45 of the Penal Code meant
imprisonment for rest of the life of the prisoner or a convict
undergoing life imprisonment has a right to claim
remission and whether as per the principles enunciated
B in paras 91 to 93 of Swamy Shraddananda (supra}, a
special category of sentence may be made for the very
few cases where the death penalty might be substituted
by the punishment of imprisonment for life or
imprisonment for a term in excess of fourteen years and
C to put that category beyond application of remission'.
51. This question contains two parts. The first part poses
a question as to whether life imprisonment as a punishment
provided for under Section 53 of the Penal Code and as
defined under Section 45 of the said Code means
D imprisonment for the rest of one's life or a convict has a right
to claim remission. The second part is based on the ruling of
Swamy Shraddananda (2) alias Murali Manohar Mishra
v. State of Karnataka reported in (2008) 13 SCC 767.
E 52. Before answering the first part of this question, it will
be worthwhile to refer to at least two earlier Constitution Bench
decisions which cover this very question. The first one is
reported as Gopal Vinayak Godse v. The State of
Maharashtra and others - (1961) 3 SCR 440. The first
F question that was considered in that decision was:
"whether, under the relevant statutory provisions, an
accused who was sentenced to transportation for life
could legally be imprisoned in one of the jails in India;
and if so what was the term for which he could be so
G imprisoned".
We are concerned with the second part of the said
question, namely, as to what was the term for which a life convict
could be imprisoned. This Court answered the said question
in the following words:
H
UNION OF INDIA v. V. SRIHARAN @MURUGAN 655
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
"A sentence of transportation for life or imprisonment for A
life must prima facie be treated as transportation or
imprisonment for the whole of the remaining period of
the convicted person's natural life".
The learned Judges also took note of the various
punishments provided for in Section 53 of the Penal Code 8
before rendering the said answer. However, we do not find
any reference to Section 45 of the Penal Code which defines
'life' to denote the life of a human being unless the contrary
appears from the context.
c
53. Having noted the ratio of the above said decision in
this question, we can also profitably refer to a subsequent
Constitution Bench decision reported as Maru Ram etc., etc.
v. Union of India and another-1981 (1) SCR 1196.At pages
1222-1223, this Court while endorsing the earlier ratio laid 0
down in Godse (supra) held as under:
"A possible confusion creeps into this discussion by
equating life imprisonment with 20 years imprisonment.
Reliance is placed for this purpose on Section 55 IPC
and on definitions in various Remission Schemes. All E
that we need say, as clearly pointed out in Godse, is that
these equivalents are meant for the limited objective of
computation to help the State exercise its wide powers
of total remissions. Even if the remissions earned have
totaled upto 20 years, still the State Government may or F
may not release the prisoner and until such a release
order remitting the remaining part of the life sentence is
passed. the prisoners cannot claim his liberty. The
reason is that life sentence is nothing less than life-long
imprisonment. Moreover. the penalty then and now is G
the same - life term. And remission vests no right to
release when the sentence is life imprisonment. No
greater punishment is inflicted by Section 433A than the
law annexed originally to the crime. Nor is any vested
right to remission cancelled by compulsory 14 years jail H
656 SUPREME COURT REPORTS [2015] 14 S.C.R.
A life once we realize the truism that a life sentence is a
sentence for a whole life. See Sambha Ji Krishan Ji. v.
State of Maharashtra, AIR 1974 SC 147 and State of
Madhya Pradesh v. Ratan Singh & Ors. [1976] Supp.
SCR 552" (Emphasis added)
B Again at page 1248 it is held as under:
"We follow Godse's case (supra) to hold that
imprisonment for life lasts until the last breath, and
whatever the length of remissions earned, the prisoner
c can claim release only if the remaining sentence is
remitted by Government".
54. In an earlier decision of this Court reported as
Sambha Ji Krishan Ji v. State of Maharashtra -AIR 1974
SC 147, in paragraph 4 it is held as under:
D "4....... .As regards the third contention, the legal position
is that a person sentenced to transportation for life may
be detained in prison for life. Accordingly, this Court
cannot interfere on the mere ground that if the period of
remission claimed by him is taken into account, he is
E entitled to be released. It is for the Government to decide
whether he should be given any remissions and whether
he should be released earlier."
55. Again in another judgment reported as State of
F Madhya Pradesh v. Ratan Singh and others - (1976) 3
sec 470, it was held as under in paragraph 9:
"9. From a review of the authorities and the statutory
provisions of the Code of Criminal Procedure the
following proposition emerge:
G (i) that a sentence of imprisonment for life does not
automatically expire at the end of 20 years including the
remissions, because the administrative rules framed
under the various Jail Manuals or under the Prisons Act
cannot supersede the statutory provisions of the Indian
H
UNION OF INDIAv. V. SRIHARAN@ MURUGAN 657
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
Penal Code. A sentence of imprisonment for life means A
a sentence for the entire life of the prisoner unless the
Appropriate Government chooses to exercise its
discretion to remit either the whole or a part of the
sentence under Section 401 of the Code of Criminal
Procedure;" B
(Emphasis added)
It will have to be stated that Section 401 referred to
therein is the corresponding present Section 432.
56. We also wish to make reference to the statement of C
law made by the Constitution Bench in Maru Ram (supra) at
pages 1221 and 1222. At page 1221, it was held:
"Here, again, if the sentence is to run until life lasts,
remissions, quantified in time cannot reach a point of
zero. This is the ratio of Godse." D
57. In the decision reported as Ranjit Singh alias Roda
v. Union Territory of Chandigarh· (1984) 1 SCC 31 while
commuting the death to life imprisonment, it was held that:
"the two life sentences should run consecutively, to ensure E
that even if any remission is granted for the first life
sentence, the second one can commence thereafter".
It is quite apparent that this Court by stating as above
has affirme';I the legal position that the life imprisonment only F
means the eritirety of the life unless it is curtailed by remissions
validly granted under the Code of Criminal Procedure by the
Appropriate Government or under Articles 72 and 161 of the
Constitution by the Executive Head viz., the President or the
·Governor of the State, respectively.
G
58. In the decision reported as Ashok Kumar alias Golu
v. Union of India and others • (1991) 3 SCC 498, it was
specifically ruled that the decision in Bhagirath (supra) does
·not run counter to Godse (supra) and Maru Ram (supra),
paragraph 15 is relevant for our purpose, which reads as under: H
658 SUPREME COURT REPORTS [2015) 14S.C.R.
A "15. It will thus be seen from the ratio laid down in the
aforesaid two cases that where a person has been
sentenced to imprisonment for life the remissions
earned by him during his internment in prison under
the relevant remission rules have a limited scope and
B must be confined to the scope and ambit of the said
rules and do not acquire significance until the sentence
is remitted under Section 432, in which case the
remission would be subject to limitation of Section 433-
A of the Code, or Constitutional power has been .
c exercised under Article 72/161 of the Constitution. In
Bhagirath case the question which the Constitution
Bench was required to consider was whether a person
sentenced to imprisonment for life can claim the benefit
of Section 428 of the Code which, inter alia, provides
D for setting off the period of detention undergone by
the accused as an undertrial against the sentence of
imprisonment ultimately awarded to him. Referring to
Section 57, IPC, the Constitution Bench reiterated the
legal position as under:
E "The provision contained in Section 57 that
imprisonment for life has to be reckoned as equivalent
to imprisonment for 20 years is for the purpose of
calculating fractions of terms of punishment. We
cannot press that provision into service for a wider
F purpose."
These observations are consistent with the ratio laid down
in Godse and Maru Ram cases. Coming next to the
question of set off under Section 428 of the Code, this
Court held:
G
"The question of setting off the period of detention
undergone by an accused as an undertrial prisoner
against the sentence of life imprisonment can arise
only if an order is passed by the appropriate authority
H
UNION OF INDIA v. V. SRIHARAN @MURUGAN 659
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
under Section 432 or Section 433 of the Code. In the A
absence of such order. passed generally or specially,
and apart from the provisions. if any. of the relevant
Jail Manual. imprisonment for life would mean.
according to the rule in Gopal Vinayak Godse.
imprisonmentforthe remainder of life." B
We fail to see any departure from the ratio of Godse case;
on the contrary the aforequoted passage clearly shows
approval of that ratio and this becomes further clear from
the final order passed by the court while allowing the
appeal/writ petition. The court directed that the period C
of detention undergone by the two accused as undertrial
prisoners would be· set off against the sentence of life
imprisonment imposed upon them, subject to the
provisions contained in Section 433-A and, 'provided
that orders have been passed by the appropriate D
authority under Section 433 of the Code of Criminal
Procedure'. These directions make it clear beyond any
manner of doubt that just as in the case of remissions so
also in the case of set off the period of detention as
undertrial would enure to the benefit of the convict E
provided the Appropriate Government has chosen to
pass an order under Sections 432/433 of the Code. The
ratio of Bhagirath case. therefore, does not run counter
to the ratio of this Court in the case of Godse or Maru
Ram." F
(underlining is ours)
59. In Subash Chander v. Krishan Lal and others -
(2001) 4 SCC 458, this Court followed Godse (supra) and
Ratan Singh (supra) and held that a sentence for life means G
a sentence for entire life of the prisoner unless the Appropriate
Government chooses to exercise its discretion to remit either
the whole or part of the sentence under Section 401 of Code
of Criminal Procedure.
H
660 SUPREME COURT REPORTS [2015) 14 S.C.R.
A 60. Paragraphs 20 and 21 can be usefully referred to
which read as under:
"20. Section 57 of the Indian Penal Code provides that
in calculating fractions of terms of punishment,
imprisonment for life shall be reckoned as equivalent to
B imprisonment for 20 years. It does not say that the
transportation for life shall be deemed to be for 20 years.
The position at law is that unless the life imprisonment is
commuted or remitted by appropriate authority under the
relevant provisions of law applicable in the case, a
c prisoner sentenced to life imprisonment is bound in law
to serve the life term in prison. In Gopal Vinayak Godse
v. State of Maharashtra the petitioner convict contended
that as the term of imprisonment actually served by him
exceeded 20 years, his further detention in jail was illegal
D and prayed for being set at liberty. Repelling such a
contention and referring to the judgment of the Privy
Council in Pandit Kishori Lalv. King Emperor this Court
held: (SCR pp. 444-45)
"If so, the next question is whether there is any
E
provision of law whereunder a sentence for life
imprisonment, without any formal remission by
Appropriate Government, can be automatically treated
as one for a definite period. No such provision is found
in the Indian Penal Code, Code of Criminal Procedure
F
or the Prisons Act. Though the Government of India
stated before the Judicial Committee in the case cited
supra that, having regard to Section 57 of the Indian
Penal Code, 20 years' imprisonment was equivalent
to a sentence of transportation for life, the Judicial
G
Committee did not express its final opinion on that
question. The Judicial Committee observed in that
case thus at p. 1O:
'Assuming that the sentence is to be regarded as one
H of twenty years, and subject to remission for good
UNION OF INDIA v. V. SRI HARAN@ MURUGAN 661
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
conduct, he had not earned remission sufficient to A
entitle him to discharge at the time of his application,
and it was therefore rightly dismissed, but in saying
this, their Lordships are not to be taken as meaning
that a life sentence must and in all cases be treated
· as one of not more than twenty years, or that the convict B
is necessarily entitled to remission.'
Section 57 of the Indian Penal Code has no real
bearing on the question raised before us. For
calculating fractions of terms of punishment the section
provides that transportation for life shall be regarded C
as equivalent to imprisonment for twenty years. It does
not say that transportation for life shall be deemed to
be transportation for twenty years for all purposes; nor
does the amended section which substitutes the words
'imprisonment for life' for 'transportation for life' enable D
the drawing of any such all-embracing fiction. A
sentence of transportation for life or imprisonment for
life must prima facie be treated as transportation or
imprisonment for the whole of the remaining period of
the convicted person's natural life." E
21. In State of M.P. v. Ratan Singh this Court held that a
sentence of imprisonment for life does not automatically
expire at the end of 20 years, including the remissions.
"A sentence of imprisonment for life means a sentence F
for the· entire life of the prisoner unless the Appropriate
Government chooses to exercise its discretion to remit
either the whole or a part of the sentence under Section
401 of the Code of Criminal Procedure", observed the
Court (at SCC p. 477, para 9). To the same effect are
the judgments in Sohan Lal v. Asha Ram, Bhagirath v. G
Delhi Admn. and the latest judgment in Zahid Hussein
v. State ofWB.
(Emphasis added)
H
662 SUPREME COURT REPORTS [2015] 14 S.C.R.
A 61. Having noted the above referred to two Constitution
Bench decisions in Godse (supra) and Maru Ram (supra)
which were consistently followed in the subsequent decisions
in Sambha Ji Krishan Ji (supra), Ratan Singh (supra),
Ranjit Singh (supra), Ashok Kumar (supra) and Subash
B Chander (supra). The first part of the first question can be
conveniently answered to the effect that imprisonment for life
in terms of Section 53 read with Section 45 of the Penal Code
only means imprisonment for rest of the life of the prisoner
subject, however, to the right to claim remission, etc. as
c provided under Articles 72 and 161 of the Constitution to be
exercisable by the President and the Governor of the State
and also as provided under Section 432 of the Code of Criminal
Procedure.
62. As far as remissions are concerned, it consists of
D two types. One type of remission is what is earned by a prisoner
under the Prison Rules or other relevant Rules based on his/
her good behavior or such other stipulations prescribed therein.
The other remission is the grant of it by the Appropriate
Government in exercise of its power under Section 432 Code
E of Criminal Procedure Therefore, in the latter case when a
remission of the substantive sentence is granted under Section
432, then and then only giving credit to the earned remission
can take place and not otherwise. Similarly, in the case of a
life imprisonment, meaning thereby the entirety of one's life,
F unless there is a commutation of such sentence fqr any specific
period, there would be no scope to count the earned remission.
In either case, it will again depend upon an answer to the
second part of the first question based on the principles laid
down in Swamy Shraddananda (supra).
G
63. With that when we come to the second part of the
first question which pertains to the special category of sentence
to be considered in substitute of Death Penalty by imposing a
life sentence i.e., the entirety of the life or a term of
H imprisonment which can be less than full life term but more
UNION OF INDIA v. V. SRIHARAN@ MURUGAN 663
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
than 14 years and put that category beyond application of A
remission which has been propounded in paragraphs 91 and
92 of Swamy Shraddananda (supra) and has come to stay
as on this date.
64. To.understand and appreciate the principle set down
in the said decision, it will be necessary to note the special 8
features analysed by this Court in the said judgment. At the
very outset, it must be stated that the said decision was a well
thought out one. This Court before laying down the principles
therein noted the manner in which the appellant in that case
comprehended a scheme with a view to grab the wealth of the C
victim, who was a married woman and who was seduced by
the appellant solely with a view to make an unholy accumulation
of the wealth at the. cost of the victim, who went all out to get
separated from her first husband by getting a divorce, married
the appellant whole heartedly reposing very high amount of D
faith, trust and confidence and went to the extent of executing
a Power of Attorney in favour of the appellant for dealing with
all her valuable properties. This Court has stated that when
the victim at some point of time realized the evil designs of the
appellant and found total mistrust in him, the appellant set the E
clock for her elimination. It will be more appropriate to note the
observation made in the said judgment after noting the manner
in which the process of elimination was schemed by the
appellant. Paragraphs 28, 29 and 30 of the Swamy
Shraddananda (2) (supra) judgment gives graphic F
description of the 'witchcrafted' scheme formulated and
executed with all perfection by the appellant and the said
paragraphs can be extracted herein which are as under:
"28. These are, in brief, the facts of the case. On these
facts, Mr. Sanjay Hegde, learned counsel for the State of G
Karnataka, supported the view taken by Katju, J. (a.s
indeed by the High Court and the trial court) and submitted
that the appellant deserved nothing less than death. In
order to bring out the full horror of the crime Mr. Hegde
H
664 SUPREME COURT REPORTS [2015] 14 S.C.R.
A reconstructed it before the Court. He said that after five
years of marriage Shakereh's infatuation forthe appellant
had worn thin. She could see through his fraud and see
him for what he was, a lowly charlatan. The appellant could
sense that his game was up but he was notwillingto let
B go of all the wealth and the lavish lifestyle that he had
gotten used to. He decided to kill Shakereh and take
over all her wealth directly.
29. In furtherance of his aim he conceived a terrible plan
and executed it to perfection. He got a large pit dug up
c at a "safe" place just outside their bedroom. The person
who was to lie into it was told that it was intended for the
construction of a soak pit for the toilet. He got the bottom
of one of the walls of the bedroom kr:iocked off making a
clearing to push the wooden box through; God only knows
D saying what to the person who was to pass through it.
He got a large wooden box (7 x 2 x 2 ft) made and
brought to 81, Richmond Road where it was kept in the
guest house, mercifully out of sight of the person for whom
it was meant. Having thus completed all his preparations
E he administered a very heavy dose of sleeping drugs to
heron 28-5-1991 when the servant couple, on receiving
information in the morning regarding a death in their family
in a village in Andhra Pradesh asked permission for
leave and some money in advance. However, before
F giving them the money asked for and letting them go, the
appellant got the large wooden box brought from the
guest house to the bedroom by Raju (with the help of
three or four other persons called for the purpose) where,
according to Raju, he saw Shakereh (for the last time)
G lying on the bed, deep in sleep. After the servants had
gone away and the field was clear the appellant
transferred Shakereh along with the mattress, the pillow
and the bed sheet from the bed to the box, in all
probability while she was still alive. He then shut the lid
H
UNION OF INDIA v. V. SRI HARAN@ MURUGAN 665
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
of the box and pushed it through the opening made in A
the wall into the pit, dug just outside the room, got the pit
filled up with earth and the surface cemented and covered
with stone slabs.
30. What the appellant did after committing murder of
Shakereh was, according to Mr. Hegde even more B
shocking. He continued to live, like a ghoul, in the same
house and in the same room and started a massive game
of deception. To Sa bah, who desperately wanted to meet
her mother or at least to talk to her, he constantly fed lies
and represented to the world at large that Shakereh was C
alive and well but was simply avoiding any social
contacts. Behind the facade of deception he went on
selling Shakereh's properties as quickly as possible to
convert those into cash for easy appropriation. In
conclusion, Mr. Hegde submitted that it was truly a murder D
most foul and Katju, J. was perfectly right in holding that
this case came under the first, second and the fifth of the
five categories, held by this Court as calling for the death
sentence in Mach hi Singh v. State of Punjab."
E·
65. After noting the beastly character of the appellant,
this Court made a detailed reference to those decisions in
which the "rarest of rare case" principle was formulated and
followed subsequently, namely, Machhi Singh and ors. v.
State of Punjab reported in (1983) 3 SCC 470, Bachan
Singh v. State Ot Punjab reported in (1980) 2 SCC 684, F
Jag Mohan Singh v. State of U.P. reported in (1973) 1 SCC
20. While making reference to the said decisions and
considering the submissions made at the Bar that for the sake
of saving the Constitutional validity of the provision providing G
for "Death Penalty" this Court must step in to clearly define its
scope by unmistakably making the types of grave murders and
other capital offence that would attract death penalty rather
than the alternative punishment of imprisonment for life. His
Lordship Justice Aftab Alam, the author of the judgment has H
666 SUPREME COURT REPORTS [2015] 14 S.C.R.
A expressed the impermissibility of this Court in agreeing to the
said submission in his own inimitable style in paragraphs 34,
36, 43, 45 and 47 in the following words:
"34. As on the earlier occasion, in Bachan Singh too
the Court rejected the submission. The Court did not
B accept the contention that asking the Court to state
special reasons for awarding death sentence amounted
to leaving the Court to do something that vvas essentially
a legislative function. The Court held that the exercise of
judicial discretion on well-established principles and on
c the facts of each case was not the same as to legislate.
On the contrary, the Court observed, any attempt to
standardise or to identify the types of cases for the
purpose of death sentence would amount to taking up
the legislative function. The Court said that a
D "standardisation or sentencing discretion is a policy
matter which belongs to the sphere of legislation" and
"the Court would not by overleaping its bounds rush to
do what Parliament, in its wisdom, warily did not do".
36. Arguing against standardisation of cases for the
E
purpose of death sentence the Court observed that even
within a single category offence there are infinite,
unpredictable and unforeseeable variations. No two
cases are exactly identical. There are countless
permutations and combinations which are beyond the
F
anticipatory capacity of the human calculus. The Court
further observed that standardisation of the sentencing
process tends to sacrifice justice at the altar of blind
uniformity.
G 43. In Machhi Singh the Cqurt crafted the categories of
murder in which "the community" should demand death
sentence for the offender with great care and
thoughtfulness. But the judgment in Mach hi Singh was
rendered on 20-7-1983, nearly twenty-five years ago, that
H
UNION OF INDIA v. V. SRIHARAN@ MURUGAN · 667
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
is to say a full generation earlier. A careful reading of the A
Machhi Singh categories will make it clear that the
classification was made looking at murder mainly as an
act of maladjusted individual criminal(s). In 1983 the
country was relatively free from organised and
professional crime. Abduction for ransom and gang rape B
and murders committed in the course of those offences
were yet to become a menace for the society compelling
the legislature to create special slots for those offences
in the Penal Code. At the time of Machhi Singh. Delhi
had not witnessed the infamous Sikh carnage. There was c
no attack on the country's Parliament. There were no
bombs planted by terrorists killing completely innocent
people.· men, women and children in dozens with
sickening frequency. There were no private armies. There
were no mafia cornering huge· government contracts D
purely by muscle power. There were no reports of killings
of social activists and "whistle-blowers". There were no
reports of custodial deaths and rape and fake encounters
by police or even by armed forces. These developments
would unquestionably find a more pronounced reflection E
in any classification if one were to be made today. Relying
upon the observations in Bachan Singh, therefore, we
respectfully wish to say that even though the categories
framed in Machhi Singh provide very useful guidelines,
nonetheless those canriot be taken as inflexible, absolute F
or immutable. Further, even in those categories, there
would be scope for flexibility as observed in Bachan
Singh itself.
45. But the relative category may also be viewed from
the numerical angle. that is to say, by comparing the case G
before the Court with other cases of murder of the same
or similar kind, or even of a graver nature and then to
see what punishment, if any was awarded to the culprits
in those other cases. What we mean to say is this, if in
H
668 SUPREME COURT REPORTS [2015] 14 S.C.R.
A similar cases or in cases of murder of a far more revolting
nature the culprits escaped the death sentence or in
some cases were even able to escape the criminal justice
system altogether, it would be highly unreasonable and
unjust to pick on the condemned person and confirm the
B death penalty awarded to him/her by the courts below
simply because he/she happens to be before the Court.
But to look at a case in this perspective this Court has
hardly any field of comparison. The Court is in a position
to judge "the rarest of rare cases" or an "exceptional case"
c or an "extreme case" only among those cases that come
to it with the sentence of death awarded by the trial court
and confirmed by the High Court. All those cases that
may qualify as the rarest of rare cases and which may
warrant death sentence but in which death penalty is
o actually not given due to an error of judgment by the trial
court or the High Court automatically fall out of the field
of comparison.
47. We are not unconscious of the simple logic that in
case five crimes go undetected and unpunished that is
E no reason not to apply the law to culprits committing the
other five crimes. But this logic does not seem to hold
good in case of death penalty. On this logic a convict of
murder may be punished with imprisonment for as long
as you please. But death penalty is something entirely
F different. No one can undo an executed death sentence."
(underlining is ours)
66. After noting the above principles, particularly culled
out from the decision in which the very principle namely "the
G rarest of rare cases", or an "exceptional case" or an "extreme
case", it was noted that even thereafter, in reality in later
decisions neither the rarest of rare case principle nor Mach hi
Singh (supra) categories were followed uniformly and
consistently. In this context, the learned Judges also noted
H
UNION OF INDIA v. V. SRI HARAN@ MURUGAN 669
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
some of the decisions, namely, Aloke Nath Dutta and Ors. A
v. State of West Bengal reported in (2007) 12 SCC 230.
This Court in Swamy Shraddananda (supra) also made a
reference to a report called "Lethal Lottery, the Death Penalty
in India" compiled jointly by Amnesty International India and
People's Union for Civil Liberties, Tamil Na du, and Puduchery B
wherein a study of the Supreme Court judgments in death
penalty cases from 1950 to 2006 was referred and one of the
main facets made in the report (Chapters 2 to 4) was about
the Court's lack of uniformity and consistency in awarding death
sentence. This Court also noticed the ill effects it caused by C
reason of such inconsistencies and lamented over the same
in the following words in paragraph 52:
"52. The inability of the criminal justice system to deal
with all major crimes equally effectively and the want of
uniformity in the sentencing process by the Court lead to D
a marked imbalance in the end results. On the one hand
there appears a small band of cases in which the murder
convict is sent to the gallows on confirmation of his death
penalty by this Court and on the other hand there is a
much wider area of cases in which the offender E
committing murder of a similar or a far more revolting
kind is spared his life due to lack of consistency by the
Court in giving punishments or worse the offender is
allowed to slip away unpunished on account of the
defidencies in the criminal justice system. Thus the F
overall larger picture gets asymmetric and lopsided and
presents a poor reflection of the system of criminal
administration of justice. This situation is a matter of
concern for this Court and needs to be remedied."
67. We fully endorse the above anguish expressed by G
this Court and as rightly put, the situation is a matter of serious
concern for this Court and wish to examine whether the
approach made thereafter by this Court does call for any
interference or change or addition or mere confirmation. After
H
670 SUPREME COURT REPORTS (2015] 14 S.C.R.
A having expressed its anguish in so many words this Court
proceeded to examine the detailed facts of the appellant's role
in that case and noted the criminal magnanimity shown by him
in killing the victim by stating that he devised a plan so that the
victim could not know1ill the end and even for a moment that
B she was betrayed by the one she trusted most and that the
way of killing appears quite ghastly it may be said that it did
not cause any mental or physical pain to the victim and that at
least before the High Court he confessed his guilt. It must be
stated that the manner in which the victim was sedated and
C buried while she was alive in the chamber no one would knew
whether at all she regained her senses and if so what amount
of torments and trauma she would have undergone before her
breath came to a halt. Nevertheless, nobody had the
opportunity ever to remotely imagine the amount of such
D ghastly, horrendous gruesome feeling the victim would have
undergone in her last moments. In these circumstances, it was
further expressed by this Court that this Court must not be
understood to mean that the crime committed by the appellant
in that case was not grave or the motive behind the crime was
E not highly depressed. With these expressions, it was held that
this Court was hesitant in endorsing the death penalty awarded
to him by the trial court and confirmed by the High Court. The
hangman's noose was thus taken off the appellant's neck.
68. If one were to judge the case of the said appellant in
F the above background of details from the standpoint of the
victim's side, it can be said without any hesitation that one
would have unhesitatingly imposed the death sentence. That
may be called as the human reaction of anyone who is affected
by the conduct of the convict of such a ghastly crime. That
G may even be called as the reaction or reflection in the common
man's point of view. But in an organized society where the
Rule of Law prevails. for every conduct of a human being, right
or wrong, there is a well set methodology followed based on
time tested, well thought out principles of law either to reward
H
UNION OF INDIA v. V. SRI HARAN@ MURUGAN 671
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
or punish anyone which was crystallized from time immemorial A
by taking into account very many factors, such as the person
concerned, his or her past conduct, the background in which
one was brought up, the educational and knowledge base,
the surroundings in which one was brought up, the societal
background, the wherewithal, the circumstances that prevailed B
at the time when any act was committed or carried out whether
there was any preplan prevalent, whether it was an individual
action or personal action or happened at the instance of
anybody else or such action happened to occur unknowingly,
c
so on so forth. It is for this reason, we find that the criminal law
jurisprudence was developed by setting forth very many
ingredients while describing the various crimes, and by
providing different kinds of punishment and even relating to
such punishment different degrees, in order to ensure that the
crimes alleged are befitting the nature and extent of commission o
of such crimes and the punishments to be imposed meets with
the requirement or the gr~vity of the crime committed.
69. Keeping the above perception of the Rule of Law
and the settled principle of Criminal Law Jurisprudence, this
Court expressed its concern as to in what manner even while E
let loose of the said appellant of the capital punishment of death
also felt that any scope of the appellant being let out after 14
years of imprisonment by applying the concept of remission
being granted would not meet the ends of justice. With that
view, this Court expressed its well thought out reasoning for F
adopting a course whereby such heartless, hardened, money
minded, lecherous, paid assassins though are not meted out
with the death penalty are in any case allowed to live their life
but at the same time the common man and the vulnerable lot
are protected from their evil designs and treacherous behavior. G
Paragraph 56 can be usefully referred to understand the lucidity
with which the whole issue was understood and a standard
laid down for others to follows:
H
672 SUPREME COURT REPORTS (2015] 14 S.C.R.
A "56. But this leads to a more important question about
the punishment commensurate to the appellant's crime.
The sentence of imprisonment for a term of 14 years,
that goes under the euphemism of life imprisonment is
equally, if not more, unacceptable. As a matter of fact,
B Mr. Hegde informed us that the appellant was taken in
custody on 28-3-1994 and submitted that by virtue of the
provisions relating to remission, the sentence of life
imprisonment, without any qualification or further direction
would, in all likelihood, lead to his release from jail in the
C first quarter of 2009 since he has already completed
more than 14 years of incarceration. This eventuality is
simply not acceptable to this Court. What then is the
answer? The answer lies in breaking this standardisation
that. in practice. renders the sentence of life imprisonment
o equal to imprisonment for a period of no more than 14
years: in making it clear that the sentence of life
imprisonment when awarded as a substitute for death
penalty would be carried out strictly as directed by the
Court. This Court, therefore. must lay down a good and
E sound legal basis for putting the punishment of
imprisonment for life, awarded as substitute for death
penalty. beyond any remjssion and to be carried out as
directed by the Court so that it may be followed. in
appropriate cases as a uniform policy not only by this
F Court but also by the High ·Courts, being the superior
courts in their respective States. A suggestion to this
effect was made by this Court nearly thirty years ago in
Dalbir Singh v. State of Punjab. In para 14 of the judgment
this Court held and observed as follows: (SCC p. 753)
G "14. The sentences of death in the present appeal
are liable to be reduced to life imprisonment. We may
add a footnote to the ruling in Rajendra Prasad case.
Taking the cue from the English legislation on abolition,
we may suggest that life imprisonment which strictly
H
UNION OF INDIA v. V. SRIHARAN@ MURUGAN 673
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
means imprisonment for the whole of the men's life A
but in practice amounts to incarceration for a period
between 10 and 14 years may, at the option of the
convicting court, be subject to the condition that the
sentence of imprisonment shall last as long as life
lasts, where there are exceptional indications of B
murderous recidivism and the community cannot run
the risk of the convict being at large. This takes care
of judicial apprehensions that unless physically
liquidated the culprit may at some remote time repeat
murder." C
We think that it is time that the course suggested in Dalbir
Singh should receive a formal recognition by the Court."
(underlining is ours)
70. Even after stating its grounds for the above D
conclusion, this Court also noticed the earlier decisions of this
Court wherein such course was adopted, namely, in Dalbir
Singh and ors. v. State of Punjab - (1979) 3 SCC 745,
Subash Chander (supra), Shri Bhagavan v. State of
Rajasthan - (2001) 6 SCC 296, Ratan Singh (supra), E
Bhagirath v. Delhi Administration • (1985) 2 SCC 580,
Prakash Dhawal Khairnar (Patil) v: State of Maharashtra
• (2002) 2 SCC 35, Ram Anup Singh and Ors. v. State of
Bihar • (201J2) 6 SCC 686, Mohd. Munna v. Union of India
and Ors. • (2005) 7 SCC 417, Jayawant Dattatraya F
Suryarao v. State of Maharashtra - (2001) 10 SCC 109,
Nazir Khan and others v. State of Delhi • (2003) 8 SCC
461, Ashok Kumar (supra) and Satpal alias Sadhu v. State
of Haryana and ors.-(1992) 4 SCC 172.
71. Having thus noted the need for carrying out a special G
term of imprisonment to be imposed, based on sound legal
principles, this Court also considered some of the decisions
of this Court wherein the mandate of Section 433 Code of
Criminal Procedure was considered at length wherein it was
' H
674 SUPREME COURT REPORTS [2015] 14 S.C.R.
A held that exercise of power under Section 433 was an
executive discretion and the High Court in its review jurisdiction
had no power to commute the sentence imposed where a
minimum sentence was provided. It was a converse situation
which this Court held has no application and the submissions
B were rejected as wholly misconceived. Thereafter, a detailed
reference was made to Sections 45, 53, 54, 55, 55A. 57 and
other related provisions in the Indian Penal Code to understand
the sentencing procedure prevalent in the Code and after
making reference to the provisions relating to grant of remission
c in Sections 432, 433. 433A, 434 and 435 of Code of Criminal
Procedure concluded as under in paragraphs 91 and 92:
"91. The legal position as enunciated in Pandit Kishori
Lal, Gopal Vinayak Godse, Maru Ram, Ratan Singh
and Shri Bhagwan and the unsound way in which
D remission is actually allowed in cases of life
imprisonment make out a very strong case to make a
special category for the very few cases where the death
penalty might be substituted by the punishment of
imprisonment for life or imprisonment for a term in excess
E of fourteen years and to put that category beyond the
application of remission.
92. The matter may be looked at from a slightly different
angle. The issue of sentencing has two aspects. A
sentence may be excessive and unduly harsh or it may
F
be highly disproportionately inadequate. When an
appellant comes to this Court carrying a death sentence
awarded by the trial court and confirmed by the High
Court, this Court may find, as in the present appeal, that
the case just falls short of the rarest of the rare category
G
and may feel somewhat reluctant in endorsing the death
sentence. But at the same time. having regard to the
nature of the crime. the Court may strongly feel that a
sentence of life imprisonment subject to remission
normally works out to a term of 14 years would be grossly
H
UNION OF INDIA v. V. SRI HARAN@ MURUGAN 675
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
disproportionate and inadequate. What then should the A
Court do? If the Court's option is limited only to two
punishments. one a sentence of imprisonment. for all
intents and purposes, of not more than 14 years and the
other death. the Court may feel tempted and find itself
nudged into endorsing the death penalty. Such a course B
would indeed be disastrous. A far more just. reasonable
and proper course would be to expand the options and
to take over what, as a matter of fact. lawfully belongs to
the Court i.e. the vast hiatus between 14 years'
imprisonment and death. It needs to be emphasised that c
the Court would take recourse to the expanded option
primarily because in the facts of the case, the sentence
of 14 years' imprisonment would amount to no
punishment at all."
(Emphasis added) D
72. Thus on a detailed reference to Swamy
Shraddananda (supra) judgment, it can be straight away held
in our view, that no more need be stated. But we wish to make
reference to certain paragraphs from the concurring judgment E
· of Justice Fazal Ali in Maru Ram (supra), page.s 1251, 1252
and 1256 are relevant which are as under:
"The dominant purpose and the avowed object of the
legislature in introducing Section 433-A in the Code of
Criminal Procedure unmistakably seems to be to secure F
a deterrent punishment for heinous offences committed
in a dastardly, brutal or cruel fashion or offences
committed against the defence or security of the country.
It is true that there appears to be a modem trend of giving
punishment a colour of reformation so that stress may G
be laid on the reformation of the criminal rather than his
confinement in jail which is an ideal objective. At the same
time. it cannot be gainsaid that such an objective cannot
be achieved without mustering the necessary facilities,
.. H
676 SUPREME COURT REPORTS [2015} 14 S.C.R.
A the requisite education and the appropriate climate which
must be created to foster a sense of repentance and
penitence in a criminal so that he may undergo such a
mental or psychological revolution that he realizes the
consequences of playing with human lives. In the world
B of today and particularly in our country, this ideal is yet to
be achieved and, in fact, with all our efforts it will take us
a long time to reach this sacred goal.
)()()( )()()( )()()(
c The question, therefore. is- should the countrv take the
risk of innocent lives being lost at the hands of criminals
committing heinous crimes in the holy hope or wishful
thinking that one day or the other. a· criminal. however
dangerous or callous he may be. will reform himself.
Valmikis are not born everyday and to expect that our
D
present generation, with the prevailing social and
economic environment, would produce Valmikis day after
day is to hope for the impossible.
)()()( )()()( )()()(
E )()()( )()()( )()()(
Taking into account the modern trends in penology there
are very rare cases where the courts impose a sentence
of death and even if in some cases where such sentences
F are given, by the time the case reaches this Court, a bare
minimum of the cases are left where death sentences
are upheld. Such cases are only those in which
imposition of a death sentence becomes an imperative
necessity having regard to the nature and character of
the offences, the antecedents of the offender and other
G
factors referred to in the Constitution Bench judgment of
this Court in Bachan Singh v. State of Punjab. In these
circumstances, I am of the opinion that the Parliament in
its wisdom chose to act in order to prevent criminals
committing heinous crimes from being released through
H
UNION OF INDIA v. V. SRI HARAN@ MURUGAN 677
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
easy remissions or substituted form of punishments A
without undergoing at least a minimum period of
imprisonment of fourteen years which may in fact act as
a sufficient deterrent which may prevent criminals from
committing offences. In most parts of our country.
particularly in the north. cases are not uncommon where B
even a person sentenced to imprisonment for life and
having come back after earning a number of remissions
has committed repeated offences. The mere fact that a
long-term sentence or for that matter a sentence of death
has not produced useful results cannot support the c
argument either for abolition of death sentence or for
reducing the sentence of life imprisonment from 14 years
to something less. The question is not what has
happened because of the provisions of the Penal Code
but what would have happened if deterrent punishments D
were not given. In the present distressed and disturbed
atmosphere we feel that if deterrent punishment is not
resorted to. there will be complete chaos in the entire
countrv and criminals will be let loose endangering the
lives of thousands of innocent people of our country: In E
spite of all the resources at its hands, it will be difficult for
the State to protect or guarantee the life and liberty of all
the citizens. if criminals are let loose and deterrent
punishment is either abolished or mitigated. Secondly,
while reformation of the criminal is only one side of the F
picture. rehabilitation of the victims and granting relief
from the tortures and sufferings which are caused to them
as a result of the offences committed by the criminals is
a factor which seems to have been completely overlooked
while defending the cause of the criminals for abolishing G
deterrent sentences. Where one person commits three
murders it is illogical to plead for the criminal and to argue
that his life should be spared, without at all considering
what has happened to the victims and their family. A
person who has deprived another person completely of H
678 SUPREME COURT REPORTS [2015] 14 S.C.R.
A his liberty forever and has endangered the liberty of his
family has no right to ask the court to uphold his liberty.
Liberty is not a one-sided concept. nor does Article 21
of the Constitution contemplate such a concept. If a
person commits a criminal offence and punishment has
B been given to him by a procedure established by law
which is free and fair and where the accused has been
fully heard, no question of violation of Article 21 arises
when the question of punishment is being considered.
Even so, the provisions of the Code of Criminal
c Procedure of 1973 do provide an opportunity to the
offender, after his guilt is proved, to show circumstances
under which an appropriate sentence could be imposed
on him. These guarantees sufficiently comply with the
provisions of Article 21. Thus, it seems to me that while
o considering the problem of penology we should not
overlook the plight of victimology and the sufferings of
the people who die, suffer or are maimed at the hands of
criminals."
(Emphasis added)
E
73. The above chiseled words of the learned Judge throw
much light on the sentencing aspect of different criminals
depending upon the nature of crimes committed by them.
Having noted the above observations of the learned Judge
F which came to be made about three and a half decades ago,
we find that what was anticipated by the learned Judge has
now come true and today we find that criminals are let loose
endangering the lives of several thousand innocent people in
our country. Such hardened criminals are in the good books of
G several powerful men of ill-gotten wealth and power mongers
for whom they act as paid assassins and Goondas.
Lawlessness is the order of the day. Having got the experience
of dealing with cases involving major crimes, we can also
authoritatively say that in most of the cases, even the kith and
kin, close relatives, friends, neighbours and passersby who
H
UNION OF INDIA v. V. SRI HARAN@ MURUGAN 679
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
happen to witness the occurrence are threatened and though A
they initially give statements to the police, invariably turn hostile,
apparently because of the threat meted out to them by the
hardened and professional criminals and gangsters. As was
anticipated by the learned Judge, it is the hard reality that the
State machinery is not able to protect or guarantee the life and B
liberty of common man. In this scenario, if any further lenience
is shown in the matter of imposition of sentence, at least in
respect of capital punishment or life imprisonment, it can only
be said that that will only lead to further chaos and there will be
no Rule of Law, but only anarchy will rule the country enabling c
the criminals and their gangs to dictate terms. Therefore, any
sympathy shown will only amount to a misplaced one which
the courts cannot afford to take. Applying thes·e well thought
out principles, it can be said that the conclusions drawn by this
Court in Swamy Shraddananda (supra) is well founded and D
can be applied without anything more, at least until as lamented
by Justice Fazal Ali the necessary facilities, the requisite
education and the appropriate climate created to foster a
sense of repentance and penitence in a criminal is inducted
so that he may undergo such a mental or psychological E
revolution that he realizes the consequence of playing with
human lives. It is also appropriate where His Lordship
obseNed that in the world of today and particularly in our country,
this ideal is yet to be achieved and that it will take a long time
to reach that goal. F
74. Therefore, in the present juncture, when we take
judicial notice of the crime rate in our country, we find that
criminals of all types of crimes are on the increase. Be it white
collar crimes, vindictive crimes, crimes against children and
women, hapless widow, old aged parents, sexual offences, G
retaliation murder, planned and calculated murder, through paid
assassins, gangsters operating in the developed cities
indulging in killing for a price, kidnapping and killing for
ransom, killing by terrorists and militants, organized crime
H
680 SUPREME COURT REPORTS [2015) 14 S.C.R.
A syndicates, etc., are the order of the day. While on the one
side peace loving citizens who are in the majority are solely
concerned with their peaceful existence by following the Rule
of Law and aspire to thrive in the society anticipating every
protection and support from the governance of the State and
B its administration, it is common knowledge, as days pass on
it is a big question mark whether one will be able to lead a
normal peaceful life without being hindered at the hands of
such unlawful elements, who enjoy in many cases the support
of very many highly placed persons. In this context, it will be
C relevant to note the PRECEPTS OF LAW which are: to live
honourably, to injure no other man and to render everyone his
due. There are murders and other serious offences
· orchestrated for political rivalry, business rivalry, family rivalry,
etc., which in the recent times have increased manifold and in
D this process, the casualty are the common men whose day to
day functioning is greatly prejudiced and people in the helm of
affairs have no concern for them. Even those who propagate
for lessening the gravity of imposition of severe punishment
are unmindful of such consequences and are only keen to
E indulge in propagation of rescuing the convicts from being
meted out with appropriate punishments. We are at a loss to
understand as to for what reason or purpose such propagation
is carried on and what benefit the soeiety at large is going to
derive.
F 75. Faced with the above situation prevailing in the
Society, it is also common knowledge that the disposal of
cases by Courts is getting delayed for variety of re;:isom;. Major
among them are the disproportionate Judges: population ratio
and lack of proper infrastructure for the institution of judiciary.
G Sometime in 2009 when the statistics was taken it was found
that the Judges:population ratio was 8 Judges for 1 million
population in India, whereas it was 50 Judges per million
population in western countries. The above factors also added
to the large pendency of criminal and civil cases in the Courts
H
UNION OF INDIAv. V. SRIHARAN@MURUGAN 681
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
which results in abnormal delay in the guilty getting punished A
then and there. In the normal course, it takes a minimum of a
year for a murder case being tried and concluded, while the
appeal arising out of such concluded trial at the High Court
level takes not less than 5 to 10 years and when it reaches this
Court, it takes a minimum of another 5 years for the ultimate B
conclusion. Such enormous delay in the disposal of cases
also comes in handy for the criminals to indulge in more and
more of such heinous crimes and in that process, the interest
of the common man is sacrificed.
76. Keeping the above hard reality in mind, when we C
examine the issue, the question is 'whether as held in
Shraddananda (supra), a special category of sentence;·
instead of death; for a term exceeding 14 years and putting
that category beyond application of remission is good in law?
When we analyze the issue in the light of the principles laid D
down in very many judgments starting from Godse (supra),
Maru Ram (supra), Sambha Ji Krishan Ji (supra), Ratan
Singh (supra), it has now come to stay that when in
exceptional cases, death penalty is altered as life sentence,
that would only mean rest of one's life span. E
77. In this context, the principles which weighed with this
Court in Mach hi Singh (supra) to inflict the capital punishment
of death were the manner of commission of murder, motive for
commission of murder, anti-social or socially abhorrent nature F
of the crime, magnitude of crime and the targeted personality
of victim of murder. The said five categories cannot be held to
be exhaustive. It cannot also be said even if a convict falls
under one or the other of the categories, yet, this Court has in
numerable causes by giving adequate justification to alter the G
punishment from 'Death' to 'Life'. Therefore, the law makers
entrusted the task of analyzing and appreciating the gravity of
the offence committed in such cases with the institution of
judiciary reposing very high amount of confidence and trust.
Therefore, when in a case where the judicial mind after
H
682 SUPREME COURT REPORTS [2015) 14 S.C.R.
A weighing the pros and cons of the crime committed, in a golden
scale and keeping in mind the paramount interest of the society
and to safeguard it from the unmindful conduct of such
offenders, takes a decision to ensure that such offenders don't
deserve to be let loose in the society for a certain period, can
B it be said that such a decision is impermissible in law. In the
first instance, as noted earlier, life sentence in a given case
only means the entirety of the life of a person unless the context
otherwise stipulates. Therefore, where the life sentence means,
a person's life span in incarnation, the Court cannot be held to
c have in anyway violated the law in doing so. Only other question
is how far the Court will be justified in stipulating a condition
that such life imprisonment will have to be served by an offender
in jail without providing scope for grant of any remission by
way of statutory executive action. As has been stated by this
o Court in Maru Ram (supra) by the Constitution Bench, that
the Constitutional power of remission provided under Articles
72 and 161 of the Constitution will always remain untouched,
inasmuch as, though the statutory power of remission, etc., as
compared to Constitution power under Articles 72 and 161
E looks similar, they are not the same. Therefore, we confine
ourselves to the implication of statutory power of remission,
etc., provided under the Criminal Procedure Code entrusted
with the Executive of the State as against the well thought out
judicial decisions in the imposition of sentence for the related
F grievous crimes for which either capital punishment or a life
sentence is provided for. When the said distinction can be
clearly ascertained, it must be held that there is a vast
difference between an executive action for the grant of
commutation, remission etc., as against a judicial decision.
G Time and again, it is held that judicial action forms part of the
basic structure of the Constitution. We can state with certain
amount of confidence and certainty, that there will be no match
for a judicial decision by any of the authority other than
Constitutional Authority, though in the form of an executive
H action, having regard to the higher pedestal in which such
UNION OF INDIA v. V. SRIHARAN@ MURUGAN 683
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
Constitutional Heads are placed whose action will remain A
unquestionable except for lack of certain basic features which
has also been noted in the various decisions of this Court
including Maru Ram (supra).
78. Though we are not attempting to belittle the scope
and ambit of executive action of the State in exercise of its B
power of statutory remission, when it comes to the question of
equation with a judicial pronouncement, it must be held that
such executive action should give due weight and respect to
the latter in order to achieve the goals set in the Constitution. It
is not to be said that such distinctive role to be played by the C
Executive of the State would be in the nature of a subordinate
role to the judiciary. In this context, it can be said without any
scope of controversy that when by way of a judicial decision,
after a detailed analysis, having regard to the proportionality
of the crime committed, it is decided that the offender deserves D
to be punished with the sentence of life imprisonment (i.e.) for
the end of his life or for a specific period of 20 years, or 30
years or 40 years, such a conclusion should survive without
any interruption. Therefore, in order to ensure that such
punishment imposed, which is legally provided for in the Indian E
Penal Code read along with Criminal Procedure Code to
operate without any interruption, the inherent power of the Court
concerned should empower the Court in public interest as well
as in the interest of the society at large to make it certain that
such punishment imposed will operate as imposed by stating F
that no remission or other such liberal approach should not
come into effect to nullify such imposition .
. 79. In this context, the submission of the learned Solicitor
General on the interpretation of Section 433-A assumes
significance. His contention was that under Section 433-A G
what is prescribed is only the minimum and, therefore, there is
no restriction to fix it at any period beyond 14 years and upto
the end of one's life span. We find substance in the said
submission. When we refer to Section 433-A, we find that the
H
684 SUPREME COURT REPORTS [2015) 14 S.C.R.
A expression used in the said Section for the purpose of grant
of remission relating to a person convicted and directed to
undergo life imprisonment, it stipulates that "such person shall
not be released from prison unless he had served at least
fourteen years of imprisonment." Therefore, when the minimum
B imprisonment is prescribed under the Statute, there will be
every justification forthe Court which considers the nature of
offence for which conviction is imposed on the offender for
which offence the extent of punishment either death or life
imprisonment is provided for, it should be held that there will
c be every justification and authority for the Court to ensure in
the interest of the public at large and the society, that such
person should undergo imprisonment for a specified period
even beyond 14 years without any scope for remission. In
fact, going by the caption of the said Section 433-A, it imposes
o a restriction on powers of remission or commutation in certain
cases. For a statutory authority competent to consider a case
for remission after the imposition of punishment by Court of
law it can be held so, then a judicial forum which has got a
wider scope for considering the nature of offence and the
E conduct of the offender including his mens rea to bestow its
judicial sense and direct that such offender does not deserve
to be released early and required to be kept in confinement
for a longer period, it should be held that there will be no dearth
in the Authority for exercising such power in the matter of
F imposition of the appropriate sentence befitting the criminal
act committed by the convict. In this context, the concurring
judgment of Justice Fazal Ali in Maru Ram (supra), as stated
in pages 1251, 1251 and 1258 on the sentencing aspect noted
in earlier paragraphs requires to be kept in view.
G 80. There is one other valid ground for our above
conclusion. In paragraph 46 of this judgment, we have noted
the provision in the Penal Code which provides for imposing
the punishment of death. There are also several dimensions
to this view to be borne in mind. In this context, it will be
H
UNION OF INDIA v. V. SRIHARAN @MURUGAN 685
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
worthwhile to refer to the fundamental principles which weighed A
with our Constitution makers while entrusting the highest power
with the head of the State, namely, the President in Article 72
of the Constitution. In the leading judgment of the Constitution
Bench in Kehar Singh v. Union of India - (1989) 1 SCC
204, this Court prefaced its judgment in paragraph 7 B
highlighting the said principle in the following words:
"7.The Constitution of India, in keeping with modern
constitutional practice, is a constitutive document,
fundamental to the governance of the country, whereby,
according to accepted political theory, the people of India C
have provided a constitutional polity consisting of certain
primary organs, institutions and functionaries to exercise
the powers provided in the Constitution. All power
belongs to the people. and it is entrusted by them to
specified institutions and functionaries with the intention D
of working out. maintaining and operating a constitutional
order. The Preambular statement of the Constitution
begins with the significant recital:
"We, the people of India, having solemnly resolved to E
constitute India into a Sovereign Socialist Secular
Democratic Republic ... do hereby adopt, enact and
give to ourselves this Constitution."
To any civilised society, there can be no attributes more
important than the life and personal liberty of its members. F
That is evideTlt from the paramount position given by the
courts to Article 21 of the Constitution. These twin
attributes enjoy a fundamental ascendancy over all other
attributes of the political and social order, and
consequently, the Legislature, the Executive and the G
Judiciary are more sensitive to them than to the other
attributes of daily existence. The deprivation of personal
ljberty and the threat of the deprivation of life by the action
of the State is in most civilised societies regarded
H
686 SUPREME COURT REPORTS [2015] 14 S.C.R.
A seriously and; recourse, either under express
constitutional provision or through legislative enactment
is provided to the judicial organ. But. the fallibilitv of human
judgment being undeniable even in the most trained mind,
a mind resourced by a harvest of experience, it has been
B considered appropriate that in the matter of life and
personal liberty, the protection should be extended by
entrusting power further to some high authority to
scrutinise the validity of the threatened denial of life or
the threatened or continued denial of personal liberty. The
c power so entrusted is a power belonging to the people
and reposed in the highest dignitary of the State. In
England, the power is regarded as the royal prerogative
of pardon exercised by the Sovereign, generally through
the Home Secretary. It is a power which is capable of
.D exercise on a variety of grounds, for reasons of State as
well as the desire to safeguard against judicial error. It is
an act of grace issuing from the Sovereign. In the United
States, however, after the founding of the Republic, a
pardon by the President has been regarded not as a
E private act of grace but as a part of the constitutional
scheme. In an opinion, remarkable for its erudition and
clarity, Mr.Justice Holmes, speaking for the Court in W./.
Biddle v. Vuco Perovich enunciated this view, and it has
since been affirmed in other decisions. The power to
F pardon is a part of the constitutional scheme, and we
have no doubt, in our mind, that it should be so treated
also in the Indian Republic. It has been reposed by the
people through the Constitution in the Head of the State,
and enjoys high status. It is a constitutional responsibility
of great significance, to be exercised when occasion
G
arises in accordance with the discretion contemplated
by the context. It is not denied, and indeed it has been
repeatedly affirmed in the course of argument by learned
counsel, Shri Ram Jethmalani and Shri Shanti Bflushan,
H
UNION OF INDIA v. V. SRI HARAN@ MURUGAN 687
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J,]
appearing for the petitioners that the power to pardon A
rests on the advice tendered by the Executive to the
President, who subject to the provisions of Article 74(1)
of the Constitution, must act in accordance with such
advice. We may point out that the Constitution Bench of
this Court held in Maru Ram v. Union of India, that the B
power under Article 72 is to be exercised on the advice
of the Central Government and not by the President on
his own, and thatthe advice of the Government binds the.
Head of the State."
(Underlining is ours) C
81. Again in paragraphs 8 and 10, this Court made a
detailed analysis of the effect of the grant of pardon or
remission vis-a-vis the judicial pronouncement and explained
the distinguishing features in their respective fields in D
uncontrov~rted terms. Paragraphs 8 and 10 can also be
usefully extracted which are as under:
8. To what areas does the power to scrutinise extend? In
Ex parte William Wells the United States Supreme Court
pointed out that it was to be used "particularly when the E
circumstances of any case disclosed such uncertainties
as made it doubtful if there should have been a conviction
of the criminal, or when they are such as to show that
there might be a mitigation of the punishment without
lessening the obligation ofvindicatory justice". And in Ex F
parte Garland decided shortly after the Civil War, Mr.
Justice Field observed:
"The inquiry arises as to the effect and operation of a
pardon, and on tt]is point all the authorities concur. A
pardon reaches both the punishment prescribed for the G
offence and the guilt of the offender; and when the pardon
is full, it releases the punishment and blots out of
existence the guilt, so that in the eye of the law the offender
is as innocent as if he had never committed the offence
H
688 SUPREME COURT REPORTS [2015] 14 S.C.R.
A ... if granted after conviction, it removes the penalties
and disabilities and restores him to all his civil rights .... "
The classic exposition of the law is to be found in Ex
parte Philip Grossman where Chief Justice Taft explained:
B "Executive clemency exists to afford relief from undue
harshness or evident mistake in the operation or the
enforcement of the criminal law. The administration of
justice by the courts is not necessarily always wise or
certainly considerate of circumstances which may
c properly mitigate guilt. To afford a remedy, it has always
been thought essential in popular governments, as well
as in monarchies, to vest in some other authority than
the courts power to ameliorate or avoid particular criminal
judgments."
D 10. We are of the view that it is open to the President in
the exercise of the power vested in him by Article 72 of
the Constitution to scrutinise the evidence on the record
of the criminal case and come to a different conclusion
from that recorded by the court in regard to the guilt of,
E and sentence imposed on, the accused. In doing so, the
President does not amend or modify or supersede the
judicial record. The judicial record remains intact, and
undisturbed. The President acts in a wholly different plane
from that in which the Court acted. He acts under a
F constitutional power. the nature of which is entirely
different from the judicial power and cannot be regarded
as an extension of it. And this is so, notwithstanding that
the practical effect of the Presidential act is to remove
the stigma of guilt from the accused or to remit the
G sentence imposed on him. In fJ.S. v. Benz Sutherland,
J., observed:
The judicial power and the executive power over
sentences are readily distinguishable. To render judgment
is a judicial function. To carry the judgment into effect is
H
UNION OF INDIA v. V. SRIHARAN @MURUGAN 689
[FAKKIR MOHAMED IBRAHIM KALIFULLA. J.]
an executive function. To cut short a sentence by an act A
of clemency is an exercise of executive power which
abridges the enforcement of the judgment. but does not
alter it qua a judgment. To reduce a sentence by
amendment alters the terms of the judgment itself and is
a judicial act as much as the imposition of the sentence B
in the first instance.
The legal effect of a pardon is wholly different from a
judicial supersession of the original sentence. It is the
nature of the power which is determinative. In Sarat
Chandra Rabha v. Khagendranath Nath, Wanchoo, J., C
speaking for the Court addressed himself to the question
whether the order of remission by the Governor of Assam
had the effect of reducing the sentence imposed on the
appellant in the same way in which an order of an
appellate or revisional criminal court has the effect of D
reducing the sentence passed by a trial court, and after
discussing the law relating to the power to grant pardon,
he said:
"Though, therefore, the effect of an order of remission is E
to wipe out that part of the sentence of imprisonment
which has not been served out and thus in practice to
reduce the sentence to the period already undergone, in
law the order of remission merely means that the rest of
the sentence need not be undergorie, leaving the order F
of conviction by the court and the sentence passed by it
untouched. In this view of the matter the order of remission
passed in this case though it had the effect that the
appellant was released from jail before he had served
the full sentence of three years' imprisonment and had
actually served only about sixteen months' imprisonment, G
did not in any way affect the order of conviction and
sentence passed by the court which remained as it was.
H
690 SUPREME COURT REPORTS (2015] 14 S.C.R.
A and again:
Now where the sentence imposed by a trial court is varied
by way of reduction by the appellate or revisional court,
the final sentence is again imposed by a court; but where
a sentence imposed by a court is remitted in part under
B Section 401 of the Code of Criminal Procedure that has
not the effect in law of reducing the sentence imposed
by the court, though in effect the result may be that t_he
convicted person suffers less imprisonment than that
imposed by the court. The order of remission affects the
c execution of the sentence imposed by the court but does
not affect the sentence as such. which remains what it
was in spite of the order of remission."
It is apparent that the power under Article 72 entitles the
D President to examine the record of evidence of the
criminal case and to determine for himself whether the
case is one deserving the grant of the relief falling within
that power. We are of opinion that the President is entitled
to go into the merits of the case notwithstanding that it
has been judicially concluded by the consideration given
E
to it by this Court.
(Underlining is ours)
82. Having thus noted the well thought out principles
underlying the exercise of judicial power and the higher
F Executive power of the State without affecting the core of the
judicial pronouncements, we wish to refer to some statistics
noted in that very judgment in paragraph 17 as to the number
of convicts hanged as compared to the number of murders
that had taken place during the relevant period, namely,
G between 1974 to 1978. It was found that there were 29
persons hanged during that period while the number of murders
was noted as 85,000. It reveals that in a period of almost four
years as against the huge number of victims, the execution of
death penalty was restricted to the minimal i.e. it was 0.034%.
H
UNION OF INDIA v. V. SRI HARAN@ MURUGAN 691
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.J
We only point out that great care and caution weighed with the A
Courts and the Executive to ensure that under no circumstance
an innocent is subjected to the capital punishment even if the
real culprit may in that process be benefited. After all in a
civilized society, the rule of law should prevail and the right of a
human being should not be snatched away even in the process B
of decision making which again is entrusted with another set
of human beings as they are claimed to be experts and well
informed legally as well as are men in the know of things.
83. Keeping the above principles in mind.when we make
a study of the vexed question, we find that the law makers have C
restricted the power to impose death sentence to only 12
Sections in the Penal Code, namely, Sections 1208(1), 121,
132, 194, 195A, 302, 305, 307(2"d para), 376A, 376E, 396
and 364A. Apart from the Penal Code such punishments of
death are provided in certain other draconian laws like TADA, D
MCOCA etc. Therefore, it was held by this Court in umpteen
numbers of judgments that death sentence is an exception
rather than a rule. That apart, even after applying such great
precautionary prescription when the trial Courts reach a
conclusion to impose the maximum punishment of death, further E
safe guards are provided under the Criminal Procedure Code
-and the Special Acts to make a still more concretized effort by
the higher Courts to ensure that no stone is left unturned for
the imposition of such capital punishments.
F
84. In this context, we can make specific reference to
the provisions contained in Chapter XXVlll of Code of Criminal
Procedure wherein Sections 366 to 371, are placed for the
relevant consideration to be mandatorily made when a death
penalty is imposed by the trial Court. Under Section 366, G
whenever a Sessions Court passes a sentence of death, the
· proceedings should be mandatorily submitted to the High Court
and the sentence of death is automatically suspended until
the same is confirmed by the High Court. Under Chapter XXVlll
of the Code, even while exercising the process of confirmation
H
692 SUPREME COURT REPORTS (2015] 14 S.C.R.
A by the High Court, very many other safe guards such as, further
enquiries, letting in additional evidence, ordering a new trial
on the same or amended charge or amend the conviction or
convict the accused of any other offence of lesser degree is
provided for. Further in order to ensure meticulous and high
B amount of precaution to be undertaken, the consideration of
such confirmation process is to be carried out by a minimum
of two Judges of the High Court. In the event of difference of
opinion amongst them, the case is to be placed before a third
Judge as provided under Section 392 of the Code. Statutory
c prescriptions apart, by way of judicial pronouncements, it has
been repeatedly held that imposition of death penalty should
be restricted to in the rarest of rare cases again to ensure that
the Courts adopt a precautionary principle of very high order
when it comes to the question of imposition of death penalty.
D 85. Again keeping in mind the above statutory
prescriptions relating to imposition of capital punishment or
the alternate punishment of life imprisonment, meaning thereby
till the end of the convict's life, we wish to analyze the scope
and extent to which such alternate punishment can be directed
E to be imposed. In the first place, it must be noted that the law
makers themselves have bestowed great care and caution
when they decided to prescribe the capital punishment of death.
and its alternate to life imprisonment, restricted the scope for
such imposition to the least minimum of 12 instances alone.
F As has been noted by us earlier, by way of interpretation
process, this Court has laid down that such imposition of capital
punishment can only be in the rarest of rare cases. In the later
decisions, as the law developed, this court laid down and
quoted very many circumstances which can be said to be
G coming within the four corners of the said rarest of rare
principle, though such instances are not exhaustive. The above
legal principle come to be introduced in the first instance in
the decision reported as Bachan Singh v. State of Punjab
-AIR 1980 SC 898. It was held as under:
H
UNION OF INDIA v. V. SRIHARAN@ MURUGAN 693
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
"151 ......... A sentence of death is the extreme penalty A
of law and it is but fair that when a Court awards that
sentence in a case where the alternative sentence of
imprisonment for life is also available, it should give
special reasons in support of the sentence .....
207: There are numerous other circumstances justifying 8
the passing of the lighter sentence; as there are
countervailing circumstances of aggravation. "We cannot
obviously feed into a judicial computer all such situations
·since they are astrological imponderables in an
imperfect and undulating society." Nonetheless, it cannot C
be over-emphasised that the scope and concept of
mitigating factors in the area of death penalty must
receive a liberal and expansive construction by the courts
in accord with the sentencing policy writ large in Section
354(3). Judges should never be bloodthirsty. Hanging of D
murderers has never been too good for them. Facts and
figures albeit incomplete, furnished by the Union of India,
show that in the past Courts have inflicted the extreme
penalty with extreme infrequency- a fact which attests to
the caution and compassion which they have always E
brought to bear on the exercise of their sentencing
discretion in so grave a matter. It is, therefore, imperative
to voice the concern that courts, aided by the broad
illustrative guidelines indicated by us, will discharge the
onerous function _with evermore scrupulous care and F
humane concern, -directed along the highroad of
legislative policy outlined in Section 354(3), viz., that for
persons convicted of murder, life imprisonment is the rule
and death sentence an exception. A real and abiding
concern forthe dignity of human life postulates resistance G
to taking a life through law's instrumentality. T_hat ought
not to be done save in the rarest of rare cases when the
alternative option is unquestionably foreclosed.
H
694 SUPREME COURT REPORTS [2015] 14 S.C.R.
A Subsequently, it was elaborated in the decision reported
as Machhi Singh and Others v. State of Punjab-AIR 1983
SC 957 it was held as under:
"32: The reasons why the community as a whole does
not endorse the humanistic approach reflected in "death
B sentence-in-no-case" doctrine are not far to seek. In the
first place, the very humanistic edifice is constructed on
the foundation of "reverence for life" principle. When a
member of the community violates this very principle by
killing another member. the society may not feel itself
c bound by the shackles of this doctrine. Secondly, it has
to be realized that every member of the community is
able to live with safety without his or her own life being
endangered because of the protective arm of the
community and on account of the rule of law enforced by
D it. The very existence of the rule of law and the fear of
being brought to book operates as a deterrent to those
who have no scruples in killing others if it suits their ends.
Every member of the community owes a debt to the
community for this protection. When ingratitude is shown
E instead of gratitude by 'Killing' a member of the
community which protects the murderer himself from
being killed, or when the community feels that for the sake
of self preservation the killer has to be killed, the
community may well withdraw the protection by
F sanctioning the death penalty. But the community will not
do so in every case. It may do so (in rarest of rare cases)
when its collective conscience is so shocked that it will
expect the holders of the judicial power centre to inflict
death penalty irrespective of their personal opinion as
G regards desirability or otherwise of retaining death
penalty. The community may entrain such a sentiment
when- the crime is viewed from the platform of the motive
for, or the manner of commission of the crime, or the anti-
social or abhorrent nature of the crime, such as for
H instance:
UNION OF INDIA v. V. SRIHARAN @MURUGAN 695
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
I Manner of Commission of Murder A
When the murder is committed in an extremely brutal,
grotesque; diabolical, revolting or dastardly manner so
as to arouse intense and extreme indignation of the
community. For instance,
B
(1) when the house of the victim is set aflame with the end
in view to roast him alive in the house.
(i1) when the victim is subjected to inhuman acts of torture
or cruelty in order to bring about his or her death.
·(iii) when the body of the victim is cut into pieces or his C
body is dismembered in a fiendish manner.
II. Motive for commission of murder
When the murder is committed for a motive which evinces
total depravity and meanness. For instance when (a) a D
hired assassin commits murder for the sake of money
or reward (b) a cold-blooded murder is committed with
a deliberate design in order to inherit property or to gain
control over property of a ward or a person under the
control of the murderer or vis-a-vis whom the murderer E
is in a dominating position or in a position of trust, or (c)
a murder is committed in the course for betrayal of the
motherland.
111. Anti-social or socially abhorrent nature of the crime
F
(a) When murder of a member of a Scheduled Caste or
minority community etc., is committed not for personal
reasons but in circumstances which arouse social wrath.
For instance when such a crime is committed in order to
terrorize such persons and frighten them into fleeing from G
a place or in order to deprive them of, or make them
surrender, lands or benefits conferred on them with a view
to reverse past injustices and in order to restore the social
balance.
H
696 . SUPREME COURT REPORTS [2015] 14S.C.R.
A (b) In cases of "bride burning" and what are known as
"dowry deaths" or when murder is committed in order to
remarry for the sake of extracting dowry once again or to
marry another woman on account of infatuation.
IV. Magnitude of crime
B
When the crime is enormous in proportion. For instance
when multiple murders say of all or almost all the
members of a family or a large number of persons of a
particular caste, community, or locality, are committed.
c V. Personality of victim of murder
When the victim of murder is (a) an innocent child who
could not have or has not provided even an excuse, much
less a provocation, for murder (b) a helpless woman or a
person rendered helpless by old age or infirmity (c) when
D the victim is a person vis-a-vis whom the murderer is in
a position of domination or trust (d)when the victim is a
public figure generally loved and respected by the
community for the services rendered by him and the
murder is committed for political or similar reasons other
E than personal reasons.
33: In this background the guidelines indicated in Bachan
Singh's case (supra) will have to be culled out and
applied to the facts of each individual case where the
F question of imposing of death sentences arises. The
following propositions emerge from Bachan Singh's
case:
(i) the extreme penalty of death need not be inflicted
except in gravest cases of extreme culpability;
G (ii) Before opting for the death penalty the circumstances
of the 'offender' also require to be taken into
consideration alongwith the circumstances of the 'crime'.
H
UNION OF INDIAv. V. SRIHARAN@MURUGAN 697
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
(iii)Life imprisonment is the rule and death sentence is A
an exception. In other words death sentence must be
imposed only when life imprisonment appears to be an
altogether inadequate punishment having regard to the
relevant circumstances of the crime, and provided, and
only provided the option to impose sentence of B
imprisonment for life cannot be conscientiously exercised
having regard to the nature and circumstances of the
crime and all the relevant circumstances.
(iv) A balance sheet of aggravating and mitigating
circumstances has to be drawn up and in doing so the C
mitigating circumstances has to be accorded full
weightage and a just balance has to be struck between
the aggravating and the mitigating circumstances before
the option is exercised.
D
34: In order to apply these guidelines inter-alia the
following questions may be asked and answered:
(a) Is there something uncommon about the crime which
renders sentence of imprisonment for life inadequate
and calls for a death sentence? E
(bl Are the circumstances of the crime such that there is
no alternative but to impose death sentence even after
according maximum weightage to the mitigating
circumstances which speak in favour of the offender?
F
If upon taking an overall global view of all the
circumstances in the light of the aforesaid proposition
and taking into account the answers to the questions
posed here in above, the circumstances of the case are
such that death sentence is warranted, the court would G
p(oceed to do so."
(Emphasis added)
These revered principles were subsequently adopted or .
explained or upheld in following cases reported as Santosh
H
698 SUPREME COURT REPORTS (2015) 14 S.C.R.
A Kumar Satishbhushan Bariyar v. State of Maharashtra -
2009 (6) SC 498, Aloke Nath Dutta (supra), Prajeet Kumar
Singh v. State of Bihar • (2008) 4 SCC 434, B.A. Umesh v.
Registrar General, High Court of Karnataka • (2011) 3 SCC
85, State of Rajasthan v. Kashi Ram • (2006) 12 SCC 254
B and Atbir v. Government of NCT of Delhi - (2010) 9 SCC 1
and also in a peculiar case of D.K. Basu v. State of West
Bengal -AIR 1997 SC 610 where this Court took the view
that custodial torture and consequential death in custody was
an offence which fell in the category of the rarest of rare cases.
c While specifying the reasons in support of such decision, the
Court awarded death penalty in that case.
86. In a recent decision of this Court reported as Vikram
Singh alias Vicky & another v. Union of India & others -
AIR 2015 SC 3577 this Court had occasion to examine the
D sentencing aspect. That case arose out of an order passed
by the High Court in a writ petition moved before the High Court
of Punjab and Haryana praying for a Mandamus to strike down
Section 364A of IPC and for an order restraining the execution
of death sentence awarded to the appellant therein. A Division
E Bench of the High Court of Punjab and Haryana while
dismissing the wrii petition took the view that the question
whether Section 364A of IPC was attracted to the case at hand
and whether a person found guilty of an offence punishable
under the provision could be sentenced to death was not only
F raised by the appellant therein as an argument before the High
Court in an appeal filed by them against their conviction and
sentence imposed which was noticed and found against them.
The High Court dismissed the writ petition by noting the regular
appeal filed earlier by the appellant therein against the
G conviction and sentence which was also upheld by this Court
while dismissing the subsequent writ petition. While upholding
the said judgment of the High Court on the sentencing aspect,
this Court has noticed as under in paragraph 49:
H
UNION OF INDIA v. V. SRIHARAN@ MURUGAN 699
[FAKKIR MOHAMED IBRAHIM KAUFULLA, J.]
"49. To sum up: A
(a) Punishments must be proportionate to the nature and
gravity of the offences for which the same are
prescribed.
(b) Prescribing punishments is the function of the B
legislature and not the Courts. ·
(c) The legislature is presumed to be supremely wise
and aware of the needs of the people and the
measures that are necessary to meet those needs.
(d) Courts show deference to the legislative will and
c
wisdom and are slow in upsetting the enacted
provisions dealing with the quantum of punishment
prescribed for different offences.
(e) Courts, however, have the jurisdiction to interfere when D
the punishment prescribed is so outrageously
disproportionate to the offence or so inhuman or brutal
that the same cannot be accepted by any standard of
decency.
(f) Absence of objective standards for determining the E
legality of the prescribed sentence makes the job of
the Court reviewing the punishment difficult.
(g) Courts cannot interfere with. the prescribed
punishment only because the punis.hment is perceived F
to be excessive.
(h) In dealing with questions of proportionality of
sentences, capital punishment is considered to be
·different in kind and degree from sentence of
imprisonment. The result is that while there are several G
instances when capital punishment has been
considered to be disproportionate to the offence
committed, there are very few and rare cases of
sentences of imprisonment being held
disproportionate." H
700 SUPREME COURT REPORTS [2015] 14 S.C.R.
A When we are on the question of sentencing aspect we
feel it appropriate to make a reference to the principles culled
out in the said judgment.
87. Having thus noted the serious analysis made by this
Court in the imposition of Death sentence and the principle of
8 rarest of rare cases formulated in the case of Bachan Singh
(supra) which was subsequently elaborated in Mach hi Singh
(supra), followed in the later decisions and is being applied
and developed, we also wish to note some of the submissions
of the counsel for the respondents by relying upon the report of
C Justice Malimath Committee on Reform in Criminal Justice
System submitted in 2003 and the report of Justice Verma's
Committee on Amendment to Criminal Law and the
introduction of some of the punishments in the Penal Code,
namely, Sections 370(6), 376A, 376D and 376E which
D prescribe the punishment of imprisonment for life which shall
mean imprisonment for the remainder of that persons' natural
life. It was further contended that some special Acts like TADA
specifically prescribe that the imposition of such punishment
shall remain and ho remission can be considered. The
E submission was made to suggest that in law when a
punishment is prescribed it is only that punishment that can be
inflicted and nothing more. In other words, when the penal
provision prescribes the punishment of Death or Life, the Court
should at the conclusion of the trial or at its confirmation, should
F merely impose the punishment of Death or Life and nothing
more. Though the submission looks attractive, on a deeper
scrutiny, we find that the said submission has no force. As has
been noted by us in the earlier paragraphs where we have
discussed the first part of this question, namely, what is meant
G by life imprisonment, we have found an answer based on
earlier Constitution Bench decisions of this Court that life
imprisonment means rest of one's life who is imposed with
the said punishment. In the report relied upon and the practices
followed in various other countries were also highlighted to
UNION OF INDIAv. V. SRIHARAN @MURUGAN 701
[FAKKIR MOHAMED IS.RAHIM KALIFULLA, J.]
support the above submission. Having thus considered the A
submissions, with utmost care, we find that it is nowhere
prescribed in the Penal Code or for that matter any of the
provisions where Death Penalty or Life 1mprisonment is
provided for, any prohibition that the imprisonment cannot be
imposed for any specific period within the said life span. When . B
life imprisonment means the whole life span of the person
convicted, can it be.said, that the Court which is empowered
to impose the said punishment cannot specify the period upto
which the said sentence of life should remain befitting the nature
of the crime committed, while at the same time apply the rarest c
of rare principle, the Court's conscience does not persuade it
to confirm the death penalty. In such context when we consider
the views expressed in Shraddananda (supra) in paragraphs
91 and 92, the same is fully justified and needs to be upheld.
By stating so, we do not find any violation of the statutory D
provisions prescribing the extent of punishment provided in ·
the Penal Code. It cannot also be said that by stating so, the
Court has carved out a new punishment. What all it seeks to
declare by stating so was that within the prescribed limit of the
punishment of life imprisonment, having regard to the nature E ·
of offence committed by imposing the life imprisonment for a
specified period would be proportionate to the crime as well
as the interest of the victim, whose interest is also to be taken
care of by the Court, when considering the nature of punishment
to be ililposed. We also note that when the report of Justice F
Malimath Committee was submitted in 2003, the learned Judge
and the members did not have the benefit of the law laid down
in Swamy Shraddananda (supra). Insofar as Justice Verma
Committee report of 2013 was concerned, the amendments
introduced after the said report in Sections 370(6), 376A, 376D G
and 376E, such prescription stating that life imprisonment
means the entirety of the convict's life does not in any way
conflict with the well thought out principles stated in Swamy
Shraddananda (supra). In fact, Justice Verma Committee
report only reiterated the proposition that a life imprisonment H
702 SUPREME COURT REPORTS [2015] 14S.C.R.
A means the whole of the remaining period of the convict's natural
life by referring to Mohd. Munna (supra), Rameshbhai
Chandubhai Rathod v. State of Gujarat - 2011 (2) SCC
764 and State of Uttar Pradesh v. Sanjay Kumar - 2012
(8) sec 537 and nothing more. Further, the said Amendment
B can only be construed to establish that there should not be any
reduction in the life sentence and it should remain till the end
of the convict's life span. As far as the reference to prescription
of different type of punishments in certain other countries need
not dissuade us to declare the legal position based on the
C punishment prescribed in the Penal Code and the enormity of
the crimes that are being committed in this country. For the
very same reasons, we are not able to subscribe to the
submissions of Mr. Dwivedi and Shri Andhyarujina that by
awarding such punishment of specified period of life
D imprisonment, the Court would be entering the domain of the
Executive or violative of the principle of separation of powers.
By so specifying, it must be held that, the Courts even while
ordering the punishment prescribed in the Penal Code only
seek to ensure that such imposition of punishment is
E commensurate to the nature of crime committed and in that
process no injustice is caused either to the victim or the
accused who having committed the crime is bound to undergo
the required punishment. It must be noted that the highest
executive power prescribed under the Constitution in Articles
F 72 and 161 remains untouched for grant of pardon, suspend,
remit, reprieve or commute any sentence awarded. As far as
the apprehension that by declaring such a sentencing process,
in regard to the offences falling under Section 302 and other
offences for which capital punishment or in the alternate life
G imprisonment is prescribed, such powers would also be
available to the trial Court, namely, the Sessions Court is
concerned, the said apprehension can be sufficiently
safeguarded by making a detailed reference to the provisions
contained jn Chapter XXVlll of Code of Criminal Procedure
H which we shall make in the subsequent paragraphs of this
UNION OF INDIAv. V. SRlHARAN@MURUGAN 703
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
judgment. As far as the other apprehension that by prohibiting A
the consideration of any remission the executive power under
Sections 432 and 433 are concerned, it will have to be held
that such prohibition will lose its force the moment, the specified
period is undergone and the Appropriate Government's power
to consider grant of remission will automatically get revived. B
Here again, it can be stated at the risk of repetition that the
higher executive power provided under the Constitution will
always remain and can be exercised without any restriction.
88. As far as the argument based on ray of hope is
concerned, it must be stated that however much forceful, the C
contention may be, as was argued by Mr. Dwivedi, the learned
Senior Counsel appearing for the State, it must be stated that
such ray of hope was much more for the victims who were
done to death and whose dependents were to suffer the
aftermath with no solace left. Therefore, when the dreams of D
such victims in whatever manner and extent it was planned,
with reference to oneself, his or her dependents and everyone
surrounding him was demolished in an unmindful and in some
cases in a diabolic manner in total violation of the Rule of Law
which is prevailing in an organized society, they cannot be E
heard to say only their rays of hope should prevail and kept
intact. For instance, in the case relating to the murder of the
former Prime Minister, in whom the people of this country
reposed great faith and confidence when he was entrusted
with such great responsible office in the fond hope that he will F
do his best to develop this country in all trusts, all the hope of
the entire people of this country was shattered by a planned
murder which has been mentioned in detail in the judgment of
this Court which we have extracted in paragraph No.14 7.
Therefore, we find no scope to apply the concept of ray of hope G
to come for the rescue of such hardened, heartless offenders,
which if considered in their favour will only result in misplaced
sympathy and again will be not in the interest of the society.
Therefore, we reject the said argument outright.
H
704 SUPREME COURT REPORTS [2015] 14 S.C.R.
A 89. Having thus noted the various submissions on this
question, we have highlighted the various prescriptions in the
cited judgments to demonstrate as to how the highest Court of
this land is conscious of the onerous responsibility reposed
on this institution by the Constitution makers in order to ensure
B that even if there is a Penal provision for the imposition of capital
punishment of death provided for in the statute, before deciding
to impose the said sentence, there would be no scope for
anyone to even remotely suggest that there was any dearth or
deficiency or lack of consideration on any aspect in carrying
C out the said onerous duty and responsibility. When the highest
Court of this land has thus laid down the law and the principles
to be applied in the matter of such graver punishments and
such principles are dutifully followed by the High Courts, when
the cases are placed before it by virtue of the provisions
ocontained in Chapter XXVlll of Code of Criminal Procedure, it
must be held that it will also be permissible for this Court to go
one step further and stipulate as to what extent such great
precautionary principle can be further emphasized.
90. Before doing so, we also wish to note each one of
E the 12 crimes for which, the penalty of death and life is
prescribed. Under Section 1208, when prescribing the penalty
for criminal conspiracy in respect of offence for which death
penalty or life imprisonment is provided for in the Penal Code,
every one of the accused who was a party to such criminal
F conspiracy in the commission of the offence is to be treated
as having abetted the crime and thereby liable to be punished
and imposed with the same punishment as was to be imposed
on the actual offender. Under Section 121 the provision for
capital punishment is for the offence of waging or attempting
G to wage a war or abetting the waging of war against the
Government of India. In other words, in the event of such offence
found proved, such a convict can be held to have indulged in a
crime against the whole of the NATION meaning thereby
against every other Indian citizen and the whole territory of this
H
UNION OF INDIAv. V. SRIHARAN @MURUGAN 705
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
country. Under Section 132, the punishment of death is A
provided for an offender who abets the committing of MUTINY
by an officer, soldier, sailor or airman in the Army, Navy or Air
Force of the Government of India and in the event of such
MUTINY been committed as a sequel to such abetment.
MUTINY in.its ordinary dictionary meaning is an open revolt B
against Constitutional authority, especially by soldiers or
sailors against their officers. It can be, therefore, clearly
visualized that in the event of such MUTINY taking place by the
Army personnel what would be plight of this country and the
safety and interest of more than 120 million people living in C
this country. Under the later part of Section 194 whoever
tenders or fabricates false evidence clearly intending thereby
that such act would cause any innocent person be convicted
of capital punishment and any such innocent person is
convicted of and executed of such capital punishment, the o
person who tendered such fake and fabricated evidence be
punished with punishmentofdeat~. UndertheSecond Part of
Section 195A if any person threatens any other person to give
false evidence and as a consequence of such Act any other
person is though innocent, but convicted and· sentenced to E
death in consequence of such false evidence, the person at
whose threat the false evidence came to be tendered is held
to be liable to be meted out with the same punishment of death.
91. Under Section 302, whoever commits murder of
another person is liable to be punished with death or life F
imprisonment. Under Section 305, whoever abets the
commission of suicide of a person under 18 years of age i.e.
a minor or juvenile, any insane person, any idiot or any person
in a state of intoxication is liable to be punished with death or
life imprisonment. It is relevant to note that the categories of G
persons whose suicide is abetted by the offender would be
persons who in the description of law are supposedly unaware
of committing such act which they actually 'perform but for the
abetment of the offender. ·
H
706 SUPREME COURT REPORTS [2015) 14 S.C.R. .
A 92. Under the Second Part of Section 307, if attempt to
murder is found proved against an offender who has already
been convicted and sentenced to undergo life imprisonment,
then he is also liable to be inflicted with the sentence of death.
Under Section 376A whoever committed the offence of rape
B and in the course of commission of such offence, also
responsible for committing the death of the victim or such injury
caused by the offence is such that the victim is in a persistent
vegetative state, then the minimum punishment provided for
is 20 years or life imprisonment or death.
C 93. Under Section 376E whoever who was once
convicted for the offence under Sections 376, 376A or 3760
is subsequently convicted of an offence under any of the said
Sections would be punishable for life imprisonment meaning
thereby imprisonment for the remainder of his life span or with
0 death. Under Section 3760 for the offence of gang rape, the
punishment provided for is imprisonment for a minimum period
of 20 years and can extend ·upto life imprisonment meaning
thereby the remainder of that person's life.
E 94. Under Section 364A kidnapping for ransom, etc. in
order to compel the Government or any foreign State or
international, intergovernmental organization or another person
to do or abstain from doing any act to pay a ransom shall be
punishable with death or life imprisonment.
F 95. Under Section 396, if any one of five or more persons
conjointly committed decoity, everyone of those persons are
liable to be punished with death or life imprisonment.
96. Thus, each one of the offences above noted, for which
the penalty of death or life imprisonment or specified minimum
G period of imprisonment is.provided for, are of such magnitude
for which the imposition of anyone of the said punishment
provided for cannot be held to be excessive or not warranted.
In each individual case, the manner of commission or the
modus operandi adopted or the situations in which the act
H
UNION OF INDIA v. V. SRI HARAN@ MURUGAN 707
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
was committed or the situation in which the victim was situated A
or the status of the person who suffered the onslaught or the
consequences that ensued by virtue of the commission of the
offence .committed and so on and so forth may vary in very
many degrees. It was for this reason, the law makers, while
prescribing different punishments for different crimes, thought B
it fit to prescribe extreme punishments for such crimes of
grotesque (monstrous) nature.
97. While that be so it cannot also be lost sight of that it
will be next to impossible for even the law makers to think of or
prescribe in exactitude all kinds of such criminal conduct to fit C
into any appropriate pigeon hole for structured punishments
to run in between the minimum and maximum period of
imprisonment. Therefore, the law makers thought it fit to
prescribe the minimum and the maximum sentence to be
imposed for such diabolic nature of crimes and leave it for the D
adjudication authorities, namely, the Institution of Judiciary who
is fully and appropriately equipped with the necessary
knowledge of law, experience, talent and infrastructure to study
the detailed parts of each such case based on the legally
acceptable material evidence, apply the legal principles and E
the law on the subject, apart from the guidance it gets from the
jurists and judicial pronouncements revealed earlier, to
determine from the nature of such grave offences found proved
and depending upon the facts noted what kind of punishment
within the prescribed limits under the relevant provision would F
appropriately fit in. In other words, while the maximum extent
of punishment of either death or life imprisonment is provided
for under the relevant provisions noted above, it will be for the
Courts to decide if in its conclusion, the imposition of death
may not be warranted, what should be the number of years of G
imprisonment that would be judiciously and judicially more
appropriate to keep the person under incarceration, by taking
into account, apart from the crime itself, from the angle of the
commission of such crime or crimes, the interest of the society
H
708 SUPREME COURT REPORTS [2015] 14 S.C.R.
A at large or all other relevant factors which cannot be put in any
straitjacket formulae.
98. The said process of determination must be held to
be available with the Courts by virtue of the ·extent of
punishments provided for such specified nature of crimes and
B such power is to be derived from those penal provisions
themselves. We must also state, by that approach, we do not
find any violation of law or conflict with any other provision of
Penal Code, but the same would be in compliance of those
relevant provisions themselves which provide for imposition
C of such punishments.
99. That apart, as has been noted by us earlier, while the
description of the offences and the prescription of punishments
are provided for in the Penal Code which can be imposed
D only through the Courts of law, under Chapter XXVlll of Code
of Criminal Procedure, at least in regard to the confirmation of
the capital punishment of death penalty, the whole procedure
has been mandatorily prescribed to ensure that such
punishment gets the consideration by a Division Bench
E consisting of two Hon'ble Judges of the High Court for its
approval. As noted earlier, the said Chapter XXVlll can be
said to be a separate Code by itself providing for a detailed
consideration to be made by the Division Bench of the High
Court, which can do and undo with the whole trial held or even
F order for retrial on the same set of charges or of different
charges and also impose appropriate punishment befitting the
nature of offence found proved.
100. Such prescription contained in the Code of Criminal
Procedure, though procedural, the substantive part rests in the
G Penal Code for the ultimate Confirmation or modification or
alteration or amendment or amendment of the punishment.
Therefore, what is apparent is that the imposition of death
penalty or life imprisonment is substantively provided for in
the Penal Code, procedural part of it is prescribed in the Code
H
UNION OF INDIA v. V. SRI HARAN @ MURUGAN 709
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
of Criminal Procedure and significantly one does not conflict A
with the other. Having regard to such a dichotomy being set.
out in the Penal Code and the Code of Criminal Procedure,
which in many respects to be operated upon in the adjudication
of a criminal case, the result of such thoroughly defined
distinctive features have to be clearly understood while B
operating the definite provisions, in particular, the provisions
in the Penal Code providing for capital punishment and in the
alternate the life imprisonment.
101. Once we steer clear of such distinctive features in
the two enactments, one substantive and the other procedural, C
one will have no hurdle or difficulty in working out the different
provisions in the two different enactments without doing any
violence to one or the other. Having thus noted the above
aspects on the punishment prescription in the Penal Code and
the procedural prescription in the Code of Criminal Procedure, D
we can authoritatively state that the power derived by the Courts
of law in the various specified provisions providing for
imposition of capital punishments in the Penal Code such
power can be appropriately exercised by the adjudicating
Courts in the matter of ultimate imposition of punishments in E
such a way to ensure that the other procedural provisions
contained in the Code of Criminal Procedure relating to grant
of remission; commutation, suspension etc. on the prescribed
authority, not speaking of similar powers under Articles 72 and
162 of the Constitution which are untouchable, cannot be held F
to be or can in any manner overlap the power already exercised
by the Courts of justice.
102. In.fact, while saying so we must also point out that
such exercise of power in the imposition of death penalty or
life imprisonment by the Sessions Judge will get the scrutiny G
by the Division Bench of the High Court mandatorily when the
penalty· is death and invariably even in respect of life
imprisonment gets scrutinized by the Division Bench by virtue
of the appeal remedy provided in the Code of Criminal
H
710 SUPREME COURT REPORTS [2015] 14S.C.R.
A Procedure. Therefore, our conclusion as stated above can be
. reinforced by stating that the punishment part of such specified
offences are always examined at least once after the Sessions
Court's verdict by the High Court and that too by a Division
Bench consisting of two Hon'ble Judges.
B 103. That apart, in most of such cases where death
penalty or life imprisonment is the punishment imposed by the
trial Court and confirmed by the Division Bench of the High
Court, the concerned convict will get an opportunity to get such
verdict tested by filing further appeal by way of Special Leave
C to this Court. By way of abundant caution and as per the
prescribed law of the Code and the criminal jurisprudence,
we can assert that after the initial finding of guilt of such
specified grave offences and the imposition of penalty either
death or life imprisonment when comes under the scrutiny of
D the Division Bench of the High Court, it is only the High Court
which derives the power under the Penal Code, which
prescribes the capital and alternate punishment, to alter the
said punishment with one either for the entirety of the convict's
life or for any specific period of more than 14 years, say 20,
E 30 or so on depending upon the gravity of the crime committed
and the exerc:ise of judicial conscience befitting such offence
found proved to have been committed.
104. We, therefore, reiterate that, the power derived from
F the Penal Code for any modified punishment within the
punishment provided for in the Penal Code for such specified
offences can only be exercised by the High Court and in the
event of further appeal only by the Supreme Court and not by
any other Court in this country. To put it differently, the power to
impose a modified punishment providing for any specific term
G of incarceration or till the end of the convict's life as an alternate
to death penalty, can be exercised only by the High Court and
the Supreme Court and not by any other inferior Court.
105. Viewed in that respect, we state that the ratio laid
H down in Swamy Shraddananda (supra) that a special
UNION OF INDIA v. V. SRIHARAN @MURUGAN 711 .
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
category of sentence; instead of Death; for a term exceeding A
14 years and put that category beyond application of remission
is well founded and we answer the said question in the
affirmative. We are, therefore, not in agreement with the opinion
expressed by this Court in Sangeet and Anr. v. State of
Haryana - 2013 (2) SCC 452 that the deprival of remission B
power of the Appropriate Government by awarding sentences
of 20 or 25 years or without any remission as not permissible
is not in consonance with the law and we specifically overrule
the same.
106. With that we come to the next important question, C
namely:
"Whether the Appropriate Government is permitted to
grant remission under Section 432/433 of Code of
Criminal Procedure after the pardon power is exercised D
under Article 72 by the President and under Article 161
by the Governor of the State or by the Supreme Court of
. its Constitutional Power under Article 32."
For the above discussion the relevant provisions of Code
of Criminal Procedure, 1973 are extracted as under: E
'.'Section 432.- Power to suspend or remit sentences
- ( 1) when any person has been sentenced to punishment
for an offence, the appropriate Government may, at any
tiine, without conditions or upon any conditions which the
person sentenced accepts, suspend the execution of his F
sentence or remit the whole or any part of the punishment
to which he has been sentenced.
(2) whenever an application is made to the appropriate
Government for the suspension or remission of a G
sentence, the appropriate Government may require the
presiding Judge of the Court before or by which_ the
conviction was had qr confirmed, to state his opinion as
to whether the application should be granted or refused,
together with his reasons for such opinion and also to H
712 SUPREME COURT REPORTS (2015] 14 S.C.R.
A forward with the statement of such opinion a certified
copy of the record of the trial or of such record thereof as
exists.
(3) If any condition on which a sentence has been
suspended or remitted is, in the opinion of the
B appropriate Government, not fulfilled, the appropriate
Government may cancel the suspension or remission,
and thereupon the person in whose favour the sentence
has been suspended or remitted may, if at large, be
arrested by any police officer, without warrant and
c remanded to undergo the unexpired portion of the
sentence.
(4) The condition on which a sentence is suspended or
remitted under this section may be one to be fulfilled by
D the person in whose favour the sentence is suspended
or remitted, or one independent of his will.
(5) The appropriate Government may, by general rules
or special orders, give directions as to the suspension
of sentences and the conditions on which petitions should
E be presented and dealt with:
Provided that in the case of any sentence (other than a
sentence of fine) passed on a male person above the
age of eighteen years, no such petition by the person
sentenced or by any other person on his behalf shall be
F entertained, unless the person sentenced is in jail, and,-
(a) Where such petition is made by the person sentenced,
it is presented through the officer in charge of the jail; or
(b) Where such petition is made by any other person, it
G contains a declaration that the person sentenced is in
jail.
· (6) The provisions of the above sub-sections shall also
apply to any order passed by a Criminal Court under any
section of this Code or of any other law which restricts
H
UNION OF INDIA v. V. SRIHARAN@ MURUGAN 713
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.) •
the liberty of any person or imposes any liability upon A
him or his property.
(7) In this section and in Section 433, the expression
"appropriate Government" means,-
(a) in cases where the sentence is for an offence against, B
or the order referred to in sub-section (6) is passed under,
any law relating to a matter to which the executive power
of the Union extends, the Central Government:
(b) in other cases, the Government of the State within
which the offender is sentenced or the said order is C
passed.
Section 433.-Power to commute sentence- The
appropriate Government may, without the consent of the
person sentenced commute-
D
(a) A sentence of deaih, for any other punishment
provided by the Indian Penal Code
(b) A sentence of imprisonment for life, for imprisonment
. for a term not exceeding fourteen years or for fine;
E
(c) A sentence of rigorous imprisonment, for simple
imprisonment for any term to which that person might
have been sentenced, or for fine;
(d)Asentence of simple imprisonment, or fine."
107. Last part of the second question refers to the F
exercise of power by this Court under Article 32 of the
Constitution pertaining to a case of remission. To understand
the background in which the said part of the question was
framed, we can look into paragraphs 29 to 31 of the Order of
Reference. On behalf of the Union of India, it was contended G
that once the power of commutation/remission has been
exercised in a particular case of a convict by a Constitutional
forum particularly this Court, then there cannot be a further
exercise of the Executive Power for the purpose of commuting/
H
714 SUPREME COURT REPORTS [2015] 14 S.C.R.
A remitting the sentence of the said convict in the same case by
invoking Sections 432 and 433 of Code of Criminal Procedure.
108. While stoutly resisting the said submission made
on behalf of the Union of India, Mr. Dwivedi, learned Senior
Counsel, who appeared for the State of Tamil Nadu contended
B that in the case on hand, this Court while commuting the death
sentence of some of the convicts did not exercise the Executive
Power of the State, and that it only exercised its judicial power
in the context of breach of Article 21 of the Constitution. It was
further contended that if the stand of Union of India is accepted
C then in every case where this Court thought it fit to commute
sentence for breach of Article 21 of the Constitution, that would
foreclose even the right of a convict to seek for further
commutation or remission before the Appropriate Government
irrespective of any precarious situation of the convict, i.e., even
D if the physical condition of the convict may be such that he
may be vegetable by virtue of his old age or terminal illness. It
was also pointed out that in V. Sriharan alias Murugan v.
Union of India & Ors. -(2014) 4 SCC 242 dated 18.02.2014,
this Court while commuting the sentence of death into one of
E life also specifically observed that such commutation was
independent of the power of remission under the Constitution,
as well as, the Statute. In this context, when we refer the power
of commutation/remission as provided under Code of Criminal
Procedure, namely, Sections 432, 433, 433A, 434 and 435, it
F is quite apparent that the exercise of power under Article 32 of
the Constitution by this Court is independent of the Executive
Power of the State under the Statue. As rightly pointed out by
Mr. Dwivedi, learned Senior Counsel in his submissions made
earlier, such exercise of power was in the context of breach of
G Article 21 of the Constitution. In the present case, it was so
exercised to commute the sentence of death into one of life
imprisonment. It may also arise while considering wrongful
exercise or perverted exercise of power of remission by the
Statutory or Constitutional authority. Certainly there would have
H
UNION OF INDIA v. V. SRI HARAN@ MURUGAN 715
[FAKKIR MOHAMED IBRAHlM KALIFULLA, J.]
been no scope for this Court to consider a case of claim for A
remission to be ordered under Article 32 of the Constitution.
In other words; it has been consistently held by this Court that
when it comes to the question of reviewing order of remission
passed which is patently illegal or fraught with stark illegality
on Constitutional violation or rejection of a claim for remission, B
without any justification or colourful exercise of power, in.either
case by the Executive Authorify of the State, there may be scope
for reviewing such orders passed by adducing adequate
reasons. Barring such exceptional circumstances, this Court
has noted in numerous occasions, the power of remission c
always vests with the State Executive and this Court at best
can only give a direction to consider any claim for remission
and cannot grant any remission and provide for premature
release. It was time and again reiterated that the power of
·commutation exclusively rest with the Appropriate Government. o
To quote a few, reference can be had to the decisions reported
as State of Punjab v. Kesar Singh • (1996) 5 SCC 495,
Delhi Administration (now NCT of Delhi) v. Manohar Lal·
(2002) 7 SCC 222 which were followed in State (Government
of NCT of Delhi) v. Prem Raj - (2003) 7 SCC 121. Paragraph E
13 of the last of the· decision can be quoted for its lucid
expression on this issue which reads as .under:
"13. An identical question regarding exercise of power
in terms of Section 433 of the Code was considered in
Delhi Admn. (now NCT of Delhi) v. Manohar Lal. The F
Bench speaking through one of us (Doraiswamy Raju,
J.) was of the view that exercise of power under Section
433 was an executive discretion. The High Court in
exercise of its revisional jurisdiction had no power
conferred on it to commute the sentence imposed where G
a minimum sentence was provided for the offence. In
State of Punjab v. Kesar Singh this Court observed as
follows [though it was in the context of Section 433(b)]:
(SCC pp. 495-96, para 3)
H
716 SUPREME COURT REPORTS [2015] 14 S.C.R.
A "The mandate of Section 433 Code of Criminal
Procedure enables the Government in an appropriate
case to commute the sentence of a convict and to
prematurely order his release before expiry of the
sentence as imposed by the courts ......... That apart.
B even ifthe High Court could give such a direction. it could
. only direct consideration of the case of premature release
by the Government and could not have ordered the
premature release of the respondent itself. The right to
exercise the power under Section 433 CrPC vests in
c the Government and has to be exercised by the
Government in accordance with the rules and established
principles. The impugned order of the High Court cannot,
therefore, be sustained and is hereby set aside."
(Underlining is ours)
D
109. The first part of the said question pertains to the
power of the Appropriate Government to grant remission after
the parallel power is exercised under Articles 72 and 161 of
the Constitution by the Presidenf and the Governor of the State
E respectively. In this context, a reference to Articles 72 and
161 of the Constitution on the one hand and Sections 432 and
433 of Code of Criminal Procedure on the other needs to be
noted. When we refer to Article 72, necessarily a reference
will have to be made to Articles 53 and 74 as well. Under
Article 53 of the Constitution the Executive Power of the Union
F vests in the President and such power should be exercised by
him either directly or through officers subordinate to him in
accordance with the Constitution. Under Article 74, the
exercise of the functions of the President should always be
based on the aid and advise of the Council of Ministers headed
G by the Prime Minister. Under the proviso to the said Article,
the President can at best seek for reconsideration of any such
advice and should act based on such reconsidered advice.
Article 74(2) in fact, has insulated any such advice being
enquired into by any Court. Identical provisions are contained
H
UNION OF INDIA v. V. SRIHARAN @MURUGAN 717
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.)
in Articles 154, 161and163 of the Constitution relating to the A
Governor of the State. Reading the above provisions, it is
clear that the president of the Union and the Governor of the
State while functioning as the Executive Head of the respective
bodies, only have to act based on the advice of the Council of
Ministers of the Union or the State. While so, when we look B
into the statutory prescription contained in Sections 432 and
433 of the Code of Criminal Procedure though the exercise of
the power under both the provisions vests with the Appropriate
Government either State or the Centre, it can only be exercised
by the Executive Authorities headed by the President or the c
Governor as the case may be. In the first blush though it may
appear that exercise of such power under Sections 432 a11d
433 is nothing but the one exercisable by the same authority
as the Executive Head, it must be noted that the real position
is different. For instance, when we refer to Section 432, the D
power is restricted to either suspend the execution of sentence
or remitthe whole or any part of the punishment. Further un.der
sub-section (2) of Section 432, it is stipulated that exercise of
power of suspension or remission may require the opinion of
the presiding Judge of the Court before or by which the E
conviction was held or confirmed. There is also provision for
imposing conditions while deciding to suspend or remit any
sentence or punishment. There are other stipulations
contained in Section 432. Likewise, when we refer to Section
433 it is provided the~in that the Appropriate Government may F
without the consent of the persons sentenced commute any of
the sentence to any other sentence which ranges from Death
sentence to fine. One significant feature in the Constitutional
power which is apparent is that the President is empowered
under Article 72 of the Constitution to grant pardons, reprieves, G
respites or remission, suspend or commute the sentence.
Similar such power is also vested with the. Governor of the
State. Whereas under Sections 432 and 433 of the Code of
Criminal Procedure the power is restricted to suspension,
remission and commutation. It can also be noted that there is H
718 SUPREME COURT REPORTS [2015] 14 S.C.R.
A no specific provision prohibiting the execution of the power
under Sections 432 and 433 of Code of Criminal Procedure
when once similar such power was exercised by the
Constitutional Authorities under Articles 72 and 161 of the
Constitution. There is also no such implied prohibition to that
B effect.
110. In this context, learned Solicitor General submitted
that while the power under Articles 72 and 161 of the
Constitution can be exercised more than once, the same is
not the position with Sections 432 and 433 of Code of Criminal
C Procedure. The learned Solicitor General contended that since
the exercise of power under Articles 72 and 161 is with the aid
of the Council of Ministers, it must be held that Sections 432
and 433 of Code of Criminal Procedure are only enabling
provisions for exercise of power under Articles 72 and 161 of
D the Constitution. In support of the said submission, the learned
Solicitor General, sought to rely upon the passage in Maru
Ram (supra) to the effect that:
"since Sections 432 and 433(a) are statutory expression
and modus operandi of the Constitutional power ........ ".
E
Though the submission looks attractive, we are not
convinced. We find that the said set of expression cannot be
strictly stated to be the conclusion of the Court. In fact, if we
read the entire sentence, we find that it was part of the
F submission made which the Court declined. On the other hand,
in the ultimate analysis, the Majority view was summarized
wherein ii was held at page 1248 as under:
"4. We hold that Sections 432 and 433 are not a
manifestation of Articles 72 and 161 of the Constitution
G but a separate, though similar, power, and Section 433A,
by nullifying wholly or partially these prior provisions does
not violate or detract from the full operation bf the
Constitutional power to pardon, commute and the like."
H
UNION OF INDIA v. V. SRI HARAN @MURUGAN 719
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
111. Therefore, it must be held that there is every scope A
and ambit for the Appropriate Government to consider and
grant remission under Sections 432 and 433 of the Code of
Criminal Procedure even if such consideration was earlier
made and exercised under Article 72 by the President and
under Article 161 by the Governor. As far as the implication of B
·Article 32 of the Constitution by this Court is concerned, we
have already held that the power under Sections 432 ahd 433
is to be exercised by the Appropriate Government statutorily,
it is not for this Court to exercise the said power and it is always
left to be decided by the Appropriate Government, even if C
someone approaches this Court under Article 32 of the
Constitution. We answer the said question on the above terms.
112. The next questions for consideration are:
"Whether Section 432(7) of the Code clearly gives
0
primacy to the Executive Power of the Union and
excludes the Executive Power of the State where the
power of the Union is coextensive?
Whether the Union or the State has primacy over the
subject-matter enlisted in List Ill of the Seventh Schedule E
to the Constitution of India for exercise of power of
remission?
Whether there can be two Appropriate Governments in
a given case under Section 432(7) of the Code?"
F
113. According to the respondents, it is the State
Government which is the Appropriate Government in a case
of this nature, unless it is specifically taken over by way of a
Statute from the State Government. Reference was made to
proviso to Article 162 of the Constitution as well as Section G
432(7) of Code of Criminal Procedure where the expression
used is "subject to and limited by" which has got greater
significance. It was also contended on behalf of the
respondents that Penal Code is a compilations of offences, in
different situations for which different consequence will follow. H
720 SUPREME COURT REPORTS [2015] 14S.C.R.
A By way of an analysis it was pointed out that Penal Code is
under the concurrent list and when the conviction is one under
Section 302 simpliciter, then, the jurisdiction for consideration
of remission would be with the State Government and that if
the said Section also attracted the provisions of-TADA, then
B · the Centre would get exclusive jurisdiction. By making
reference to Section 55A(a) of the Penal Code and Section
434 of Code of Criminal Procedure it was contended that when
the conviction and sentence is under Section 3021.P.C., without
the aid of TADA or any other Central Act, State Government
c gets jurisdiction which will be the Appropriate Government. In
this context, our attention was drawn to the fact that in the Rajiv
Gandhi murder case, respondents Santhan, Murugan, Nalini
andArivu@Perarivalan were awarded death sentence, while
3 other accused, namely, Ravichandran, Robert Payas and
D Jayakumarwere given life imprisonment and that Nalini's death
sentence was commuted by the Governor of the State in the
year 2000, while the claim of 3 others was rejected.
114. Later, by the judgment dated 18.02.2014, the death
sentence of three others was also commuted to life by this
E Court. In support of the submission reliance was placed upon
the decisions of this Court in Ratan Singh (supra). State of
Madhya Pradesh v. Ajit Singh and others· (1976) 3 SCC
616, Hanumant Dass v. Vinay Kumar and ors. - (1982) 2
SCC 177 and Govt. of A.P. and others v. M.T. Khan - (2004)
F 1 sec 616.
115. Reference was also made to the Constituent
Assembly debates on Article 59 which corresponds to Article
72 in the present form and Article 60 which correspondents to
G Article 73(1 )(a) of the present form. In the course of the debates,
an amendment was sought to be introduced to Article 59(3)
and in this context, the member who moved the amendment
stated thus:
"Sir, in my opinion, the President only should have power
H to suspend, remit or commute a sentence of death. He
UNION OF INDIAv. V. SRIHARAN@MURUGAN 721
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
is the supreme Head of the State. It follows therefore A
that he should have the supreme powers also. I am of
opinion that rulers of States or Provincial Government
should not be vested with this supreme power. ........ "
116. Dr. Ambedkar while making his comment on the
amendment proposed stated thus: B
"Yes: Sir: It might be desirable that I explain in a few
words in its general outline the scheme embodied in
article 59. It is this: the power of commutation of sentence
for offences enacted by the Federal Law is vested in the c
President of the Union. The power to commute
sentences· for offences enacted by the State Legislatures
is vested in the Governors of the State. In the case of
sentences of death. whether it is inflicted under any law
passed by Parliament or by the law of the States, the D
power is vested in both, the President as well as the State
concerned. This is the scheme."
(Underlining is ours)
117. After the above discussions on the proposed
amendments, when it was put to vote, the amendment was E
negatived.
118. Similarly the amendment to the proviso to Article
60 was preferred by a member who in his address stated thus:
"The object of my amendment is to preserve the F
Executive Power of the States or provinces at least in so
far as the subjects which are included in the concurrent
list. It has been pointed out during the general
discussions that the scheme of the Draft Constitution is ·
to whittle down the powers of the States considerably G
and. though the plan is said to be a federal one. in actual
fact it is a unitary form of Government that is sought to be
imposed in the Country by the Draft Constitution ...... "
(Emphasis added)
H
722 SUPREME COURT REPORTS [2015] 14 S.C.R.
A 119. After an elaborate discussion, when the opinion of
Dr. Ambedkar was sought, he addressed the Assembly and
stated thus:
''The Hon'ble Dr. B.R. Ambedkar (Bombay:General): Mr.
Vice- President, Sir, I am sorry that I cannot accept either
B of the two amendments which have been moved to this
proviso, but I shall state to the House very briefly the
reasons why I am not in a position to accept these
amendments. Before I do so, I think it is desirable that
the House should know what exactly is the difference
c between the position as stated in the proviso and the
two amendments which are moved to that proviso. Taking
the proviso as it stands, it lays down two propositions.
The first proposition is that generally the authority to
executive laws which relate to what is called the
D concurrent field, whether the law is passed by the Central
Legislature or whether it is passed by the provincial or
State Legislature. shall ordinarily apply to the province
or the State. That is the first proposition which this
proviso lays down. The second proposition which the
E proviso lays down is that if in any particular case
Parliament thinks that in passing the law which relates to
the concurrent field the execution ought to be retained
by the Central Government, Parliament shall have the
power to do so. Therefore, the position is this; that in all
F cases, ordinarily, the executive authority so far as the
concurrent list is concerned will rest with the union, the
provinces as well as the States. It is only in exceptional
cases that the Centre may prescribe that the execution
of the concurrent law shall be with the Centre."
G (Emphasis added)
Thereafter further discussions were held and ultimately
when the amendment was put to vote, the same was negatived.
H
UNI.ON OF INDIA v. V. SRI HARAN @ MURUGAN 723
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
120. It was, therefore, contended that in the absence of A
a specific law pertaining to the exercise of power under
Sections 432 and 433, the States will continue to exercise their
power of remission and commutation and that cannot be
prevented. As against the above submissions, learned
Solicitor General contended that a reference to the relevant B
provision of the Penal Code and the Code of Criminal
Procedure read along with the Constitutional provisions.
disclose that Entry I of List Ill of the Seventh Schedule makes a
clear specification of the jurisdiction of the Centre and the State
and any overlapping is taken care of in the respective entries c
themselves. The learned Solicitor General also brought to· our
notice the incorporation of Section 432(7) in the Code of
Criminal Procedure providing for a comprehensive definition
of 'Appropriate Government' based on the.recommendations
of the Law Commission in its Forty First Report. By the said o
report, the law Commission indicated that the definition of
'Appropriate Government' as made in Sections 54, 55 and
55A needs to be omitted in the Indian Penal Code as redundant
while making a comprehensive provision in Section 402 (now
the corresponcling present Section 433). Paragraphs 29.10, E
29.11 and 29.12 of the said report can be noted for the purpose
for which the amendment was suggested and its implications:
"29.10. Power to commute sentences.- Sub-section
(1) of section 402 enables the Appropriate Government
to commute sentences without the consent of the person F
sentenced. This general provision ha·s, however, to be
read with sections 54 and 55 of the Indian Penal Code
which contain special provisions in regard to
commutation of sentences of death and of imprisonment
for life. The definition of "Appropriate Government" G
contained in sub-section (3) of section 402 is substantially
the same as that contained in section 55A of the Indian
Penal Code. It would obviously be desirable to remove
this duplication and to state the law in one place. In the
H
724 SUPREME COURT REPCR:S [2015] 14S.C.R.
A present definition of "Appropriate Governmenf' in section
402(3), the reference to the State Government is
somewhat ambiguous. It will be noticed that clause (b)
of section 55A of the Indian Penal Code specifies the
particulars State Government which is competent to
B order commutation as ''the Government of the State within
which the offender is sentenced".
29.11. Section 402 revised: sections 54, 55 and 55A
of l.P.C. to be omitted.- We, therefore, propose that
sections 54,55 and 55A may be omitted from the Indian
c Penal Code and their substance incorporated in section
402 of the Criminal Procedure Code. This section may
be revised as follows:-
"402. Power to commut~ sentence.-(1) The Appropriate
D Government may, without the consent of the person
sentenced,-
(a) commute a sentence of death, for any other
punishment provided by the Indian Penal Code;
(b) commute a sentence of imprisonment for life, for
E imprisonment of either description for a term, not
exceeding fourteen years or for fine;
(c) commute a sentence of rigorous imprisonment, for
· simple imprisonment for any term to which that
F person might have been sentenced or for fine;
(d) commute a sentence of simple imprisonment, for
fine.
(2) In this section and in section 401, the expression
"Appropriate Government" means-
G
(a) in cases where the sentence is for an offence
against, or the order referred to in sub-section (4A) of
section 401 is passed under, any law relating to a
matter to which the Executive Power of the Union
H extends, the Central Government; and
UNION OF INDIAv. V. SRIHARAN@MURUGAN 725
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
(b) in other cases, the Government of the State within A
.which the offender is sentenced or the said order is
passed."
29.12. The power to suspend or remit sentences under
section401 and the power to commute sentences under
section 402 are thus divided between the Central 8
Government and the State Government on the·
Constitutional lines indicated in Articles 72 and 161. If,
for instance, a person is convicted at the same trial for
an offence punishable under the Arms Act or the
Explosives Act and for an offence punishable under the C
Indian Penal Code and sentenced to different terms of
imprisonment but running concurrently, both Governments
will have to pass orders before the sentences are
effectively suspended, remitted or commuted. Cases
may occur where the State Government's order simply D
mentions the nature of the sentence remitted or
commuted and is treated as sufficient warrant by the
prison authorities though strictly under the law, a
corresponding order of the Central Government is
required in regard to the sentence for the offence falling E
within the Union List. The legal provisions are, however,·
clear on the point and we do not consider that any
clarification is required."
121. The learned Solicitor General also relied upon the F
judgment of this Court in G.V. Ramanaiah v. The
Superintendent of Central Jail, Rajahmundry and others ,
-AIR 1974 SC 31 and contended that where the offence is
dealt with by the prosecuting agency of the Central Government,
by virtue of the proviso to Article 73 of the Constitution, the G
Executive Power of the Central Government is saved and,
therefore, in such cases, it is the Central Government which is
the Appropriate Government.
H
726 SUPREME COURT REPORTS [2015] 14S.C.R.
A 122. Having noted the respective submissions of the
parties, the sum and substance of the submission of the
respondent State as well as other respondents is that a
conspectus consideration of the definition of the "Appropriate
Government" under the Penal Code read along with Section
B 432(7) of Code of Criminal Procedure, where the conviction
was under the penal provision of IPC and was not under any
Central Act, the whole authority for consideration of suspension
of sentence or remission of sentence or commutation rests
solely with the State Government within whose jurisdiction, the
C conviction came to be imposed. It was, however, submitted
that if the conviction was also under any of the Central Act,
then and then alone the Central Government becomes the
'Appropriate Government' and not otherwise. It was in support
of the said submission, reliance was placed upon the decisions
oof this Court in Ratan Singh (supra), Ajit Singh (supra),
Hanumant Dass (supra) and M.T. Khan (supra). The
Constituent Assembly debates on the corresponding Articles
viz., Articles 72 and 73 were also highlighted to show the
intention of the Constituent Assembly while inserting the above
E said Articles to show the primacy of the State Government under
certain circumstances and that of the Central Government
under certain other circumstances which the Members of the
Assembly wanted to emphasis.
123. The question posed for our consideration is whether
F there can be two Appropriate Governments under Section
432(7) of the Code of Criminal Procedure and whether Union
or the State has primacy for the exercise of the power under
Section 432(7) over the subject matter enlisted in List Ill of the
Seventh Schedule for grant of remission as a co-extensive
G power. To find an answer to the combined questions, we can
make reference to Section 55A of the Penal Code which
defines "Appropriate Government" referred to in Sections 54
and 55 of the Penal Code. Sections 54 and 55 of the Penal
Code pertain to commutation of sentence of death and
H
UNION OF INDIA v. V. SRIHARAN@ MURUGAN 727
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
imprisonment for life respectively by the Appropriate A
Government. In that context, in Section 55A, the expressions
"Appropriate Government" has been defined to mean in cases
where the sentence is a sentence of death or is for an offence
against any law relating to a matter to which the Executive
Power of the Union extends, the Central Government. The B
definition, therefore, makes it clear that insofar as it relates to
commutation of death sentence, the Appropriate Government
is the Central Government. That apart, if the sentence of death
or life is for an offence against any law relating to a matter to
which the Executive Power of the Union extends, then again, c
the 'Appropriate Government' is the Central Government. We
have dealt with in extenso while examining Section 73(1) (a)
with particular reference to the proviso as to under what
circumstance the Executive Power of the Central Government
will continue to remain as provided under Article 73(1 )(a). We D
can make a reference to that part of our discussion, where we
have explained the implication of the proviso to Article 73(1 )(a)
in order to· note the extent of the Executive Power of the Central
Government under the said Article. Therefore, in those cases,
where by virtue of any law passed by the Parliament or any of E
the provisions of the Constitution empowering the Central
Government to act by specifically conferring Executive Authority,
then in all those situations, the Executive Power of the Central
Government will remain even if the State Governmentis also
empowered to pass legislations under the Constitution. By F
virtue of the said Constitutional provision contained in the
proviso to Article 73(1) (a), ifthe Executive Power of the Central
Government remains, applying Section 55A (a) of the Penal
Code, it can be stated without any scope of controversy that
the Central Government would be the Appropriate Government G
in those cases, where th·e sentence is of death or is for an
offence relating to a matter wherein the Executive Power of
the Union gets extended. This is one test to be applied for
ascertaining as who will be the Appropriate Government for
passing order of commutation of sentence of death as well as H
728 SUPREME COURT REPORTS [201S] 14 S.C.R.
A life imprisonment in the context of Sections 54 and SS of Penal
Code.
124. Keeping it aside for a while, when we refer to
Section SSA (b ), it is provided therein that in cases where the
sentence, whether of death or not, is for an offence against
8 any law relating to a matter to which the Executive Power of
the State extends, the Government of the State within which
the offender is sentenced will be the Appropriate Government.
Sub-clause (b) of Section ·ssA postulates different
circumstances viz., the sentence whether of death or not is for
C an offence relating to a matter to which the Executive Power
of the State extends, then if the imposition of such sentence
was within the four corners of the State concerned, then the
Appropriate Government would be the State Government. In
fact in this context, the submission made on behalf of the
D respondents needs to be appreciated that if there was a
conviction for an offence under Section 302 IPC simpliciter,
even if the prosecuting agency was the Central Government,
the State Government would be the Appropriate Government
within whose jurisdiction the imposition of sentence came to
E be made either of death or not. While analyzing Section SSA,
vis-a-vis Sections S4 and SS of the Penal Code, wherever the
Executive Power of the Union extends, the Appropriate
Government would be the Central Government and in all other
cases, the Appropriate Government would be the concerned
F State within whose jurisdiction the sentence came to be
imposed.
12S. With that analysis made with reference to Section
SS of the Penal Code, when we refer to Section 432(7) of Code
of Criminal Procedure, here again, we find the definition
G "Appropriate Government" is made with particular reference
to and in the context of Sections 432 and 433 of Code of
Criminal Procedure. Under Section 432(1) to (6) the
prescription is relating to the power to suspend or remit
sentences, the procedure to be followed, the conditions to be
H
UNION OF INDIA v. V. SRIHARAN@ MURUGAN 729
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
imposed and the consequences in the event of breach of any A
conditions imposed. 'Similarly, Section 433 pertains to the
power of the Appropriate Government to commute the sentence
of death, imprisonment for life, sentence of rigorous
imprisonment and sentence of simple imprisonment to some
other lesser punishment up to imposition of fine. The power B
under Section 433 can be exercised only by the Appropriate
Government. It is in the above context of the prescription
contained in Sections 432 (1) to (6) and 433(a) to (d), the
definition of 'Appropriate Government' under Section 432(7)
has to be analysed. Section 432(7) defines the 'Appropriate C
Government' to mean; in cases where the sentence is for an
offence against or the order referred to in sub-section (6) of
Section 432 is passed under any law relating to a matter to
which the Executive Power of the Union extends, it is the Central
Government. Therefore, what is to be seen is whether the D
sentence passed is for an offence against any law relating to
a matter to which the Executive Power of the Union extends.
Here again, our elaborate discussion on Article 73(1 )(a) and
its proviso need to be read together. It is imperative and
necessary to refer to the discussions on Articles 72, 73, 161 E
and 162 of the Constitu\ion, inasmuch as how to ascertain the
Executive Power of the Centre and the State has been basically
set out only in those Constitutional provisions. In other words,
only by applying the said Constitutional provisions, the
Executive Power of the Centre and the State can be precisely F
ascertained. To put it differently, Section 432(7) does not
prescribe or explain as to how to ascertain the Executive Power
of the Centre and the State, which can be ascertained only by
analyzing the above said Articles 72, 73, 161 and 162 of the
Constitution. If the offence falls under any such law which the G
Parliament is empowered to enact as such law has been
enacted, on which subject law can also be enacted by any of
the States, then the Executive Power of the Centre by virtue of
such enactment passed by the Parliament providing for
enforcement of such Executive Power, would result in the H
730 SUPREME COURT REPORTS [2015) 14S.C.R.
A Central Government becoming the Appropriate Government
in respect of any sentence passed against such law. At the
risk of repetition, we can refer to Article 73(1 )(a) with its proviso
to understand the Constitutional prescription vis-a-vis its
application for the purpose of ascertaining the Appropriate
B Government under Section 432(7) of the Code. When we read
the. proviso to Article 73(1) (a) closely, we note that the
emphasis is on the 'Executive Power' which should have been
expressly provided in the Constitution or in any law made by
the Parliament in order to apply the saving Clause under the
.C proviso. Once the said prescription is clearly understood, what
is to be examined in a situation where any question arises as
to who is the 'Appropriate Government' in any particular case,
then if either under the law in which the prosecution came to
be launched is exclusively under a Central enactment, then
D the Centre would be the 'Appropriate Government' even if the
situs is in any particular State. Therefore, if the order passed
by a Criminal Court covered by sub-section (6) of Section 432
was under any law relating to a matter where the Executive
Power of the Union extends by virtue of enactment of such
E Executive Power under a law made by the Parliament or
expressly provided in the Constitution, then, the Central
Govemmentwould be the Appropriate "Government. Therefore,
what is to be noted is, whether \he sentence passed under a
law relating to a matter to which the Executive Power of the
F Union extends, as has been stipulated in the proviso to Article
73(1 )(a). In this context, it will be worthwhile to make reference
to what Dr. Ambedkar explained, when some of the Members
of the Assembly moved certain amendments to enhance the
powers of the State with particular reference to Article 60 of
G the Draft Constitution which corresponds to Article 73 as was
ultimately passed. In the words of Dr. Ambedkar himself it was
said:
"The second proposition which the proviso lays down is
that if in any particular case Parliament thinks that in
H
UNION OF INDIAv. V. SRIHARAN@MURUGAN 731
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
passing the law which relates to the concurrent field the A
execution ought to be retained by the Central
Government, Parliament shall have the power to do
so ..... It is only in exceptional cases that the Centre may
prescribe that the execution of the concurrent law shall
be with the Centre. B
If the said prescription is satisfied than it would be the
Central Government who will be the Appropriate Government.
126. For the purpose of ascertaining which Government
would be the Appropriate Government as defined under c
Section 432(7), what is to be seen is the sentence imposed
by the criminal court under the Code of Criminal Procedure or
any other law which restricts the liberty of any person or imposes
any liability upon him or his property. If such sentence imposed
is under any of the Sections of the Penal Code, for which the
0
Executive Power of the Central Government is specifically
provided for under a Parliament enactment or prescribed in
the Constitution itself then the 'Appropriate Government' would
be the Central Government. To. understand this position more
explicitly, we can make reference to Article 72(1 )(a) of the E
Constitution which while specifying the power of the Executive
head of the country, namely, the President it is specifically
provided that the power to grant pardons, etc. or grant of
remissions etc. or commutation of sentence of any person·
convicted of any offence in all cases where the punishment or F
sentence is by a Court Martial, then .it is clear to the effect that
. under the Constitution itself the Executive Power is specifically
conferred on the Centre. While referring to various
Coristitutional provisions, we have also noted such express
Executive Power conferred on the Centre in respect of matters
with reference to which the State is also empowered to make G
laws. If under the provisions of the Code the sentence is
imposed, within the territorial jurisdiction of the State
concerned, then the 'Appropriate Government' would be the
State Government. Therefore, to ascertain who will be
H
732 SUPREME COURT REPORTS [2015] 14 S.C.R.
A Appropriate Government whether the Centre or the State, the
first test should be under what provision of the Code of Criminal
Procedure the criminal Court passed the order of sentence. If
the order of sentence is passed under any other law which
restricts the liberty of a person, then which is that law under
B which the sentence was passed to be ascertained. If the order
of sentence imposed any liability upon any person or his
property, then again it is to be verified under which provision
of the Code of Criminal Procedure or any other law under which
it was passed will have to be ascertained. In the ascertainment
c of the above questions, if it transpires that the implication to
the proviso to Article 73(1 )(a) gets attracted, namely, specific
conferment of Executive Power with the Centre, then the Central
Government will get power to act and consequently, the case
will be covered by Section 432(7) (a) of the Code and as a
o sequel to it, Central Government will be the 'Appropriate
Government' to pass orders under Sections 432 and 433 of
the Code of Criminal Procedure.
127. In order to understand this proposition of law, we
can make a reference to the decision relied upon by the learned
E Solicitor General in G.V. Ramanaiah (supra). That was a
case where the offence was dealt with and the conviction was
imposed under Sections 489A to 4890 of the Penal Code.
The convicts were sentenced to rigorous imprisonment for a
period of ten years. The conviction came to be made by the
F criminal Court of the State of A.P. The question that came up
for consideration was as to who would be the 'Appropriate
Government' for grant of remission as was provided under
Section 401 of the Code of Criminal Procedure which is the
corresponding Section for 432 of Code of Criminal Procedure.
G In that context, this Court noted that the four sections, viz.,
Sections 489(A) to 489(0) were added to the Penal Code
under the caption "of currency notes and Bank notes" by the
Currency Notes Forgery Act, 1899. This Court noted that the
bunch of those Sections were the law by itself and that the
H
UNION OF INDIA v. V. SRI HARAN @ MURUGAN 733
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
same would be covered by the expression "currency coinage A
and legal tender" which are expressly included in Entry 36 of
· the Union List in the Seventh Schedule of the Constitution. Entry
No.93 of the Union List in the same Schedule conferred on the
Parliament the. power to legislate with regard to offences .
against laws with respect to any of the matter in the Union List. B
It was, therefore, held thatthe offenses for which those persons
were convicted were offences relating to a matter to which the
Executive Power of the Union extended and the Appropriate
Government competent to remit the sentence would be the
Central Government and not the State Government. The said c
decision throws added light on this aspect.
128. Therefore, whether under any of the provisions of
the CriminalProcedure Code or under any Special enactment
enacted by the Central Government by virtue of its enabling ,
power to bring forth such enactment even though the State D
Government is also·empowered to make any law on that
subject, having regard to the proviso to Article 73(1 )(a), if the
conviction is for any of the offences against such provision .
contained iri the Code of Criminal Procedure or under such
special enactments of the Centre if the Executive Power is E
specified in the enactment with the Central Government then
the Appropriate Government would be the Central Government.
Under Section 432(7)(b) barring cases falling under432(7)(a)
in all other cases, where the offender is sentenced or the
sentence order is passed within the territorial jurisdiction of F
the concerned State, then alone the Appropriate Government
would be the State.
129. Therefore, keeping the above prescription in mind
contained in Section 432(7) and Section 55A of the IPC, it will G
have to be ascertained whether in the facts and circumstances
of a case, where the Criminal Court imposes the sentence
and if such sentence pertains to any Section of the Penal Code
or under any other law for which the Executive Power of the
center extends, then in those cases the Central Government
H
734 SUPREME COURT REPORTS [2015] 14 S.C.R.
A would be the 'Appropriate Government'. Again in respect of
cases, where the sentence is imposed by the Criminal Court
under any law which falls within the proviso to Article 73(1 )(a)
of the Constitution and thereby the Executive Power of the
Centre is conferred and gets attracted, then again, the·
B Appropriate Government would be the Centre Government.
In all other cases, if the sentence order is passed by the Court
within the territorial jurisdiction of the concerned State, the
concerned State Government would be the Appropriate
Government for exercising its power of remission, suspension
c as well as commutation as provided under Sections 432 and
433 of the Code of Criminal Procedure. Keeping the above
prescription in mind, every case will have to be tested to find
out which is the Appropriate Government State or the Centre.
130. However, when it comes to the question of primacy
D to the Executive Power of the Union to the exclusion of the
Executive Power of the State, where the power is co-extensive,
in the first instance, it will have to be seen again whether, the
-sentence ordered by the Criminal Court is found under any
law relating to which the Executive Power of the Union extends.
E In that respect, in our considered view, the first test should be
whether the offence for which the sentence was imposed was
under a law with respect to which the Executive Power of the
Union extends. For instance, if the sentence was imposed
under TADA Act, as the said law pertains to the Union
F Government, the Executive Power of the Union alone will apply
to the exclusion of the State Executive Power, in which case,
there will be no question of considering the application of the
Executive Power of the State.
131. But in cases which are governed by the proviso to
G Article 73(1) (a) of the Constitution, different situations may
arise. For instance, as was dealt with by this Court in G.V.
Ramanaiah (supra), the offence was dealt with by the criminal
Court under Section 489(A) to 489(0) of the Penal Code.
H While dealing with the said case, this Court noted that though
UNION OF INDIA v. V. SRIHARAN @MURUGAN 735
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
the offences fell under the provisions of the Penal Code, which A
law was covered by Entry 1 of List Ill of the Seventh Schedule,
namely, the Concurrent List which enabled both the Centre as
well as the State Govern.ment to pass any law, having regard
to the special feature in that case, wherein, currency notes and
bank notes to which the offences related, were all matters falling B
under Entries 36 and 93 of the Union List of the Seventh
Schedule, it was held that the power of remission fell exclusively
within the competence of the Union. Therefore, in such cases
the Union Government will get exclusive jurisdiction to pass
orders urider Sections 432 and 433 Code of Criminal c
Procedure.
132. Secondly, in yet another situation where the law
came to be enacted by the Union in exercise of its powers
under Articles 248, 249, 250, 251 and 252 of the Constitution,
though the legislative power of the States would remain, yet, D
the combined effect of these Articles read along with Article
73(1) (a) of the Constitution will give primacy to the Union
Government in the event of any laws passed by the Centre
prescribes the Executive Power to vest with it to the exclusion
of the Executive Power of the State then such power will remain E ·
with the Centre. In other words, here again, the co-extensive
power of the State to enact any law would be present, but having
regard to the Constitutional prescription under Articles 248 to
252 of the Constitution by which if specific Executive Power is
conferred then the Union Government will get primacy to the F
exclusion of State.
133. Thirdly, a situation may arise where the authority to
bring about a law may be available both to the Union as well
as the Slate, that the law made by the Parliament may invest
the Executive Power with the Centre while, the State may also G
enjoy similar such Executive Power by virtue of a law which
State Legislature was also competent to make. In these
situations, the ratio laid down by this Court in the decision in
G.V. Ramanaiah (supra) will have to be applied and ascertain
H
736 SUPREME COURT REPORTS [2015] 14S.C.R.
A which of the two, namely, either the State or the Union would
gain primacy to pass anyorderof remission, etc. In this context,
it will be relevant to note the proviso to Article 162 of the
Constitution, which reads as under:
"Article 162.- Extent of executive power of State
B
)()()()()()()()()(
Provided that in any matter with respect to which the
Legislature of a State and Parliament have power to
make laws, the executive power of the State shall be
C subject to, and limited by, the executive power expressly
conferred by this Constitution or by any law made by
Parliament upon the Union or authorities thereof."
If the proviso applies to a case, the Executive Power of
the State should yield to the Executive Power of the Centre
D expressly conferred by the Constitution or by any law made by
Parliament upon the Union or its authorities.
134. Therefore, the answer to the question should be to
the effect that where the case falls under the first test noted
E herein, it will be governed by Section 432(7)(a) of the Code of
Criminal Procedure in which event, the power will be exclusive
to the Union. In cases which fall under the situation as was
dealt with by this Court in G.V. Ramanaiah (supra), there again
the power would exclusively remain with the Centre. Cases
F falling under second situation like the one covered by Articles
248 to 252 of the Constitution, wherein, the competence to
legislate laws was with the State, and thereby if the Executive
Power of the State will be available, having regard to the
mandate of these Articles which empowers the Union also to
G make laws and thereby if the Executive Power of Um Union
also gets extended, though the power is co-extensive, it must
be held that having regard to the special features set out in the
Constitution in these situations, the Union will get the primacy
to the exclusion of the State.
H
UNION OF INDIA v. V. SRI HARAN@ MURUGAN 737
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
135. Therefore, we answer the question Nos.52.3, 52.4 A
and 52.5 to the above extent leaving it open for the parties
concerned, namely, the Centre or the State to apply the test
and find out who will be the 'Appropriate Government' for
exercising the power under Sections 432 and 433 of the
Criminal Procedure Code. ·B
136. Next, we take up the question:
'Whether suo motu exercise of power of remission under
Section 432( 1) is permissible in the scheme of the
Section, if yes, whetherthe procedure prescribed in sub- c
section (2) of the same section is mandatory or not?"
Section 432(1) and (2) reads as under:
· "432. Power to suspend or remit sentences.-(1) When
any person has been sentenced to punishment for an
D
offence, the Appropriate Government may, at any time,
without conditions or upon any conditions which the
person sentenced accepts, suspend the execution of his
sentence or remit the whole or any part of the punishment
to which he has been sentenced.
E
(2) Whenever an application is made to the Appropriate
Government for the suspension or remission of a
sentence, the Appropriate Government may require the
presiding Judge of the Court before or by which the
conviction was had or confirmed, to state his opinion as F
to whether the application should be granted or refused,
together with his reasons for such opinion and also to
forward with the statement of such opinion a certified
copy of the record of the trial or of such record thereof as
exists." G
137. Sub-section (1) of Section 432 empowers the
Appropriate Government either to suspend the execution of a
. sentence or remit the whole or any part of the punishment to
which he has been sentenced. While passing such orders, it
H
738 SUPREME COURT REPORTS [2015] 14 S.C.R.
A can impose any conditions or without any condition. In the
event of imposing any condition such condition must be
acceptable to the person convicted. Such order can be passed
at any time.
138. Sub-section (2) of Section 432 pertains to the
B opinion to be secured from the presiding Judge of the Court
who convicted the person and imposed the sentence or the
Court which ultimately confirmed such conviction. Whenever
any application is made to the Appropriate Government for
suspension or remission of sentence, such opinion to be
C rendered must say whether the prayer made in the application
.should be granted or refused. It should also contain reasons
along with the opinion, certified copy of the record of the trial
or such other record which exists should also be fprwarded.
139. Before making an analysis on the question referred
0
for our consideration, certain observations of the Constitution
Bench of this Court in Maru Ram (supra) which was stated in
the context of the power exercisable under Articles 72 and 161
of the Constitution needs to be noted. Such observations
E relating to the Constitutional power of the President and
Governor, of course with the aid and advice of the Council of
Ministers, is on a higher plane and are stated to be
'untouchable' and 'unapproachable'. It was also held that the
Constitutional power, as compared to the power exercisable
F under Sections 432 and 433 looks similar but not the same, in
the sense that the statutory power under Sections 432 and
433 is different in source, substance and strength and it is not
as that of the Constitutional power. Such statement of law was
made by the Constitution Bench to hold that notwithstanding
Sections 433A which provides for minimum of 14 years
G incarnation for a lifer to get the benefit of remission, etc., the
President and the Governor can continue to exercise the power
of Constitution and release without the requirement of the
minimum period of imprisonment. But the significant aspect
of the ruling is a word of caution even to such exercise of higher
H
UNION OF. INOIA v. V. SRIHARAN @MURUGAN 739
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
· Constitutional power with high amount of circumspection and A
is always susceptible to be interfered with by judicial forum in
the event of any such exercise being demonstrated to be
fraught with arbitrariness or ma/a fide and should act in trust
to our Great Master, the Rule of Law. In fact the Bench quoted
certain examples like the Chief Minister of a State releasing B
everyone in the prison in his State on his birthday or because
a son was born to him and went to the extent of stating that it
.would be an outrage on the Constitution to let such madness
to survive.
140. We must state that such observations and legal C
principles stated in the context of Articles 72 and 161 of the
Constitution will have greater force and application when we
·examine the scope and ambit of the power exercisable by the
Appropriate Government under Section 432(1) and (2) of Code
of Criminal Procedure. D
141. Keeping the above principles in mind, when we
analyze Section 432(1), it must be held that the power to
suspend or remit any sentence will have to be considered and
ordered with much more care and caution, in particular the E
interest of the public at large. In this background, when we
.analyze Section 432(1 ), we find that it only refers to the nature
of power available to the Appropriate Government as regards
the suspension of sentence or remission to be granted at any
length. Extent of power is one thing and the procedure to be F
followed for the exercise of the power is different thing. There
is no indication in Section. 432(1) that such power can be
exercised based on any application. What is not prescribed
in the statute cannot be imagined or inferred. Therefore, when
there is no .reference to any application being made by the G
offender, cannot be taken to mean that such power can be
exercised by the authority concerned on its·own. More so, when
a detailed procedure to be followed is clearly set out in Section
432(2). It is not as if by exercising such power under Section
432(1 ), the Appropriate Government will be involving itself in
H
740 SUPREME COURT REPORTS [2015] 14S.C.R.
A any great welfare measures to the public or the society at large.
It can never be held that such power being exercised suo motu
any great development act would be the result. After all such
exercise of power of suspension or remission is only going to
grant some relief to the offender who has been found to have
B committed either a heinous crime or at least a crime affecting
the society at large. Therefore, when in the course of exercise
of larger Constitutional powers of similar kind under Articles
72 and 161 of the Constitution it has been opined by this Court
to be exercised with great care and caution, the one
C exercisable under a statute, namely, under Section 432( 1)
which is lesser in degree should necessarily be held to be
exercisable in tune with the adjunct provision contained in the
same section. Viewed in that respect, we find that the
procedure to be followed whenever any application for
D remission is moved, the safeguard provided under Section
432(2) should be the sine-quo-non for the ultimate power to
be exercised under Section 432 (1 ).
142. By following the said procedure prescribed under
Section 432(2), the action of the Appropriate Government is
E bound to survive and stand the scrutiny of all concerned
including judicial forum. It must be remembered, barring minor
offences, in cases involving heinous crimes like, murder,·
kidnapping, rape robbery, dacoity, etc., and such other offences
of such magnitude, the verdict of the trial Court is invariably
F dealt with and considered by the High Court and in many cases
by the Supreme Court. Thus, having regard to the nature of
opinion to be rendered by the presiding officer of the
concerned Court will throw much light on the nature of crime
committed, the record of the convict himself, his background
G and other relevant factors which will enable the Appropriate
Government to take the right decision as to whether or not
suspension or remission of sentence should be granted. It
must 9lso be borne in mind that while for the exercise of the
Constitutional power under Articles 72 and 161, the Executive
H
UNION OF INDIA v. V. SRI HARAN @MU RU GAN 741
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
Head will have the benefit of act and advice of the Council of A
Ministers, forthe exercise of power under Section 432(1 ), the
Appropriate Government will get the valuable opinion of the
judicial forum, which will definitely throw much light on the issue
relating to grant of suspension or remission.
143. Therefore, it can safely be held that the exercise of B
power under Section 432(1) should always be based on an
application of the person concerned as provided under Section
432(2) and after duly following the procedure prescribed under
Section432(2). We, therefore, fully approve the declaration of
law made by this Court in Sangeet (supra) in paragraph 61 C
that the power of Appropriate Government under Section
432(1) Code of Criminal Procedure cannot be suo motu for
the simple reason that this Section is only an enabling
provision. We also hold that such a procedure to be followed
under Section 432(2) is mandatory. The manner in which the D
opinion is to be rendered by the Presiding Officer can always
be regulated and settled by the concerned High Court and the
Supreme Court by stipulating the required procedure to be
followed as and when any such application is forwarded by
the Appropriate Government. We, therefore, answer the said . E
question to the effect that the suo motu power of remission
cannot be exercised under Section 432(1 ), that it can only be
initiated based on an application of the persons convicted as
provided under Section 432(2) and that ultimate order of
suspension or remission should be guided by the opinion to F
be rendered by the Presiding Officer of the concerned Court.
144. We are now left with the question namely:
"Whether the term "'Consultation"' stipulated in Section
435(1) of the Code implies "'Concurrence"'?" G
It is relevant to extract Section 435( 1) of Code of Criminal
Procedure, which reads as under: ·
"Section 435. State Government to act after
consultation with Central Government in certain H
742 SUPREME COURT REPORTS [2015] 14 S.C.R.
A cases.-( 1) the powers conferred by sections 432 and
433 upon the State Government to remit or commute a
sentence, in any case where the sentence is for an
offence.
(a) Which was investigated by the Delhi Special Police
B Establishment constituted under the Delhi Special
Police Establishment Act, 1946, or by any other
agency empowered to make investigation into an
offence under any Central Act other than this Code,
or
c
(b )Which involved the misappropriation or destruction
of, or damage to, any property belonging to the
Central Government, of
(c)Which was committed by a person in the service of
D the Central Government, while acting or purporting
to act in the discharge of his official duty,
shall not be exercised by the State Government except
after consultation with the Central Government."
E Answer to this question depends wholly on the
interpretation of Section 435 of Code of Criminal Procedure.
After referring to the said Section, learned Solicitor General
referred to the convictions imposed on the accused/
respondents in the Late Raj iv Gandhi Murder case. Learned
F Solicitor General pointed out that though 26 accused were
convicted by the Special Court, this Court confirmed the
conviction only as against the 7 respondents in that ·writ
Petition and the rest of the accused were all acquitted, namely,
19 of them. He also pointed out that the conviction of the
G Special Court under TADA Act was set aside by this Court.
While the conviction of the respondents under Sections 212
and 216 of l.P.C, Section 14 of Foreigners Act, Section 25(1-
B) of Arms Act, Section 5 of Explosive Substances Act, Section
12 of the Passport Act and Section 6(1-A) of The Wireless
H Telegraph Act were all confirmed by this Court. That apart
UNION OF INDIAv. V. SRIHARAN@MURUGAN 743
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
conviction under Section 120-B l.P.C. read with Section 302 A
l.P.C. against all the seven respondents was also confirmed
by this Court. In the ultimate conclusion, this Court confirmed
the death sentence against A-1 Nalini, A-2 Santhan, A-3
Murugan and A-18 Arivu and the sentence of Death against A-
g Robert Payas, A-10 Jayakumar and A-16 Ravichandran was B
altered as imprisonment for life. Subsequently in the judgment
in V. Sriharan (supra) even the death sentence againstA-2
Santhan, A-3 Murugan and A-18 Arivu was also commuted
into imprisonment for life meaning thereby end of one's life,
subject to remission granted by the Appropriate Government C
under Section 432 of the Code of Criminal Procedure, 1973,
which in turn, subject to the procedural checks mentioned in
the said provision and further substantive checks in Section
433 A of the Code.
145. As far as the remission provided under Section 432 D
is concerned, the same will consist of the remission of the
sentence of a prisoner by virtue of good behavior, etc., under
the Jail Manual, Prisoners' Act and Rules and other Regulations
providing for earning of such remission and remission of the
sentence itself by imposing conditions. Keeping the above E
factual matrix in the Rajiv Gandhi Murder case, vis-a-vis the 7
respondents therein as a sample situation, we proceed to
analyze these questjons arising underSection 435 Code of.
Criminal. Pro.Cech.ire , :Learned ~,oljpitcir <;3~rnera1 in his
submissions contended that since the punishments imposed · F: ·
on the respondents under the various Central Acts such as
Foreigners Act, Passport Act, etc., have all been completed
by the respondents, the requirement of Section 435(2) does
not arise and, therefore, there will be no impediment for the
State Government to exercise its power under Section 435(2) G
of the Code of Criminal Procedure According to the learned
Solicitor General, since the period of imprisonment under
various Central Acts has already been suffered by the
respondents, the requirement of passing order of suspension,
H
744 SUPREME COURT REPORTS [2015] 14 S.C.R.
A remission or commutation by the Central Government does
not arise and it is for the State Government to pass order of
suspension, remission or commutation under Section 435(2)
Code of Criminal Procedure The learned Solicitor General,
however, contended that by virtue of the fact that whole
B investigation right from the beginning was entrusted with the
C.8.1. under the Delhi Police Establishment Act and the ultimate
conviction of the respondents under the provisions of Indian
Penal Code came to be made by the Special Court and
commutation of the same with certain modifications as regards
c the sentence part alone by this Court, by virtue of the proviso
to Article 73(1 )(a) of the Constitution, the Executive Authority
of the Union gets the power to pass order either under Article
72 of the Constitution or under Sections 432 to 435 of Code
of Criminal Procedure and to that extent the scope and ambit
D of the power of the State Government gets restricted and,
therefore, in the event of the State Government, in its right as
the Appropriate Government seeks to exercise its power under
Section 435(1) Code of Criminal Procedure such exercise of
power in the present context can be exercised only with the
E 'Concurrence' of the Central Government and the expression
'Consultation' made in Section 435(1) should be held as such.
In support of his submissions the learned Solicitor General
relied upon Lalu Prasad Yadav & Anr. v. State of Bihar &
Anr. - (2010) 5 SCC 1, Supreme Court Advocates on
F Record Association and ors. v. Union of India - (1993) 4
SCC 441, State of Gujarat and Anr. v. Justice R.A. Mehta
(Retired) and ors. - (2013) 3 SCC 1 and N. Kannadasan v.
Ajoy Khose and Ors. - (2009) 7 SCC 1.
146. As against the above submissions, Mr. Dwivedi,
G learned Senior Counsel fortile State of Tamil Nadu prefaced
his submissions by contending that while proposing to grant
remission to the respondents, the State Government did not
undermine the nature of crime committed and the impact of
the remission that may be caused on the society, as well as,
H
UNION OF INDIAv. V. SRIHARAN@MURUGAN 745
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
the concern of the State Government in this case. The learned A
Senior Counsel also submitted that the State Government is
not going to act in haste and is very much alive to the fact that
the person murdered was a former Prime Minister of this
country and the State cannot take things lightly while considering
the remission to be granted to the Respondents. The learned B
Senior Counsel, therefore, contended that in the process of
'Consultation', the views of the Central Government will be duly
considered before passing final orders on the proposed
remission. According to learned Senior Counsel under Section
435( 1), the act of 'Consultation' prescribed is a rider to the c
exercise of Executive Power of the State to be exercised under
Sections 432 and 433 in respect of cases falling under Sections
435(1 )(a) to (c). By referring to Sections 435(2) the learned
Senior Counsel contended that in the said sub-section
cautiously the Parliament has used the expression D
'Concurrence' while in Section 435(1) the expression used is
'Consultation'. It is, therefore, pointed out that the distinctive
idea of 'Consultation' and 'Concurrence' has been clearly
disclosed. The learned Senior Counsel then pointed out that
while acting under Section 435(1 ), what is relevant is the E
Sentence and not the Conviction, which can be erased only by
grant of pardon and grant of remission will have no implication
on the conviction. By referring to Section 435(1 )(b) & (c), tile
learned Senior Counsel pointed out that with reference to those .
offences where the investigation can be carried out entirely by F
the State Government and the offence would only relate to the
property of the Central Government and the services of person
concerned in the services of the Centre what is contemplated
is only 'Consultation'. It was contended that when the
'Consultation' process is invoked by the State Government, G
Union of India can suggest whatever safeguards to be made
to ensure that even while granting remission, necessary
safeguard is imposed. The learned Senior Counsel also
submitted that paramount consideration should be the interest
of the Nation which is the basic feature of the Constitution and, H
746 SUPREME COURT REPORTS [2015] 14 S.C.R.
A therefore, 'Consultation' means effective and meaningful
'Consultation' and that the State ·cannot act in an irresponsible
manner keeping the Nation at peril. The learned Senior
Counsel contended that though the CBI conducted the
investigation and all the materials were gathered by the CBI,
B after the conviction, every material is open and, therefore, it
cannot be said that the State Government had no material with
it. The learned Senior Counsel also pointed out that the jail
representation is with the State Government and it will be open
to the State to consider the recorded materials by the Court
c and invoke its power under Sections 432 and 433 of Code of
Criminal Procedure. The learned Senior Counsel further
contended that in the process of 'Consultation', the Union
Government will be able to consider any other material within
its knowledge and make an effective report. If such valuable
o materials reflected in the 'Consultation' process are ignored
by the State, then the Court's power of Review can always be
invoked. The learned Senior Counsel relied upon the decisions
reported in State of U.P. and another v. Johri Mal - (2004)
4 SCC 714, Justice Chandrashekaraiah (Retired) v.
E Janekere C. Krishna and others· (2013) 3 SCC 117 and
S.R. Bommai and others v. Union of India and others •
(1994) 3 sec 1 in support of his submissions.
147. In order to appreciate the respective submissions,
it will be necessary to refer to the relevant Government orders
F passed by the State of Tamil Nadu and the consequential
Notification issued by the Government of India after the
gruesome murder of Late Rajiv Gandhi, the former Prime
Minister of India on 21.05.1991 at 10.19 p.m. at Sriperumbudur
in Tamil Nadu. It will be worthwhile to trace back the manner by
G which the accused targeted their killing as has been succinctly
narrated in the judgment reported in State through
Superintendent of Police, CBI/SIT v. Nalini and others •
(1999) 5 SCC 253. Paragraphs 23 to 29 are relevant which
read as under:
H
UNION OF INDIA v. V. ~RI HARAN @ MURUGAN 74 7
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
"23. On 21-5-1991, Haribabu bought a garland made of A
sandalwood presumably for using it as a camouflage (for
murdering Rajiv Gandhi). He also secured a camera.
Nalini (A-1) wangled leave from her immediate boss (she
was working in a company as PA to the Managing
Director) under the pretext that she wanted to go to B
Kanchipuram for buying a saree. Instead she went to her
mother's place. Padma (A-21) is her mother. Murugan
(A-3) was waiting for her and on his instruction Nalini
rushed to her house at Villiwakkam (Madras). Sivarasan
reached the house of Jayakumar (A-10) and he got C
a
armed himself with pistol and then he proceeded to
the house of Vijayan (A-12).
24. Sivarasan directed Suba and Dhanu to get
theml>elves ready for the final event. Suba and Dhanu
entered into an inner room. Dhanu was fitted with a bomb D
on her person together with~a battery and switch. The
loosely stitched salwar-kameez which was purchased
earlier was worn by Dhanu and it helped her to conceal
the bomb and the other accessories thereto. Sivarasan
asked Vijayan (A-12) to fetch an auto-rickshaw. E
25. The auto-rickstiawwhich Vijayan (A-12) brought was
not taken close to his house as Sivarasan had cautioned
him in advance. He took Suba and Dhanu in the auto-
rickshaw and dropped them at the house ofNalini (A-1 ). F
Suba expressed gratitude of herself and her colleagues
to Nalini (A-1) for the wholehearted participation made
by her in the mission they had undertaken. She then told
Nalini that Dhanu was going to create history by
murdering Rajiv Gandhi. The three women went with G
Sivarasan to a nearby temple where Dhanu offered her
last prayers. They then went to "Parry's Corner" lwhich is
a starting place of many bus services at Madras).
Haribabu was waiting there with the camera and garland.
H
748 SUPREME COURT REP.ORTS [2015] 14 S.C.R.
A 26. All the 5 proceeded to Sriperumbudur by bus. After
reaching there they waited for the arrival of Raj iv Gandhi.
Sivarasan instructed Nalini (A-1) to provide necessary
cover to Suba and Dhanu so that their identity as Sri
Lankan girls would not be disclosed due to linguistic
B accent. Sivarasan further instructed her to be with Suba
and to escort her after the assassination to the spot where
Indira Gandhi's statue is situate and to wait there for 10
minutes for Sivarasan to reach.
27. Nalini (A-1 ), Suba and Dhanu first sat in the enclosure
c earmarked for ladies at the meeting place at
Sriperumbudur. As the time of arrival of Rajiv Gandhi was
nearing Sivarasan took Dhanu alone from that place. He
collected the garland from Suba and escorted Dhanu to
go near the rostrum. Ohanu could reach near the red
D carpet where a little girl (Kokila) and her mother (Latha
Kannan).were waiting to present a poem written by Kokila
on Raj iv Gandhi.
28. When Rajiv Gandhi arrived at the meeting place Nalini
(A-1) and Suba got out of the enclosure and moved away.
E
Rajiv Gandhi went near the little girl Kokila. He would
have either received the poem or was about to receive
the same, and at that moment the hideous battery switch
was clawed by the assassin herself. Suddenly the pawn
bomb got herself blown up as the incendiary device
F
exploded with a deadening sound. All human lives within
a certain radius were smashed to shreds. The head of a
female, without its torso, was seen flinging up in the air
and rolling down. In a twinkle, 18 human lives were turned
into fragments of flesh among which was included the
G former Prime Minister of India Rajiv Gandhi and his
personal security men, besides Dhanu and Haribabu.
Many others who sustained injuries in the explosion,
however, survived.
H
UNION OF INDIAv. V. SRIHARAN@MURUGAN 749
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
29. Thus the conspirators perpetrated their prime target A
achievement at 10.19 p.m. on 21-5-1991 at
Sriperumbudur in Tamil Nadu.
148. Closely followed, after the above occurrence, the
Principal Secretary to the Government of Tamil Nadu
addressed a D.O. letter dated 22.05.1991 to the Joint B
Secretary to the Government of India, conveying the order of
the Government of Tamil Nadu expressing its consent under
Section 6 of the Delhi Special Police Establishment Act 1946
to the extension of powers and jurisdiction of members of the
Delhi Special Police Establishment to investigate the case in C
Crime No.329/91 under Sections 302, 307 and 326 IPC and
under Section 3 & 5 of The Explosive Substances Act,
registered in Sriperumbudur police station, Changai Anna
(West) District, Tamil Nadu, relating to the death of Late Rajiv
Gandhi, former Prime Minister of India on 21.05.1991. The D
Notification of the Government of Ta'mil Nadu under Section 6
ot the 1946 Act mentioned the State of Tamil Nadu's consent
to the extension of powers to the members of Delhi Special
Police Establishment in the WHOLE of the State of Tamil Nadu
for the investigation of the crime in Crime No.329/91. In turn, E
the Government of India, Ministry of Personnel, Public
Grievances and Pensions, Department of Personnel and
Training passed its Notification dated 23.05.1991 extending
power and jurisdiction of the members of the Delhi Special
Police Establishment to the WHOLE of the State of Tamil Nadu F
for investigation in respect of crime No.329/91. That is how
the Central Government came into the picture in the
investigation of the crime, the conviction by the Special Court
of 26 persons and the ultimate confirmation insofar as it was
againsf the present Respondents alone setting aside the G
conviction as againstthe 19 accused.
149. The above noted facts disclose that the case is
covered by Section 435(1 )(a) of Code of Criminal Procedure.
Therefore, as per Section 435(1) the power of State H
750 SUPREME COURT REPORTS [2015] 14 S.C.R.
A Government to remit or commute the sentence under Sections
432 and 433 Code of Criminal Procedure should not be
exercised except after due 'Consultation' with the Central
Government. Since the expression 'shall' is used in the said
sub-section, it is mandatory for the State Government to resort
B to the 'Consultation' process without which, the power cannot
be exercised. As rightly submitted by the learned Senior
Counsel for the State of Tamil Nadu, such 'Consultation' cannot
be an empty formality and it should be an effective one. While
on the one hand the power to grant remission under Section
c 432 and commute the sentence under Section 433 conferred
on the Appropriate Government is available, as we have noted,
the exercise of such power insofar as it related to remission
or suspension under Section 432 is not suo motu, but can be
made only based on an application and also circumscribed
o by the other provisions, namely, Section 432(2), whereby the
opinion of the Presiding.Judge who imposed or confirmed the
conviction should be given due consideration. Further, we have
also explained how to ascertain as to who will be ~e
Appropriate Government as has been stipulated under Section
E 432(7) of Code of Criminal Procedure which applied to the
exercise of power both under Section 432 and as well as 433 ·
Code of Criminal Procedure In this context, we have also
analyzed as to how far the proviso to Article 73(1) (a) of the
Constitution will ensure greater Executive Power on the Centre
F over the State wherever the State Legislature has also got
power to make laws. Having analyzed the implication of the
said proviso, vis-a-vis, Articles 161, 162 and Entry 1 and 2 of
List Ill of the Seventh Schedule, by virtue of which, the Central
Government gets primacy as an Appropriate Government in
G matter of this kind. Having regard to our above reasoning on
the interpretation of the Constitutional provisions read along
with the provisions of Code of Criminal Procedure, our
conclusion as to who will be the Appropriate Government has
to be ascertained in every such case. In the event of the Central
H
UNION OF INDIA v. V. SRIHARAN@ MURUGAN 751
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
Government becoming the Appropriate Government by A
applying the tests which we have laid based on Section 432(7)
read along with the proviso to Article 73( 1)(a) of the Constitution
and the relevant entries of List 111 of the Seventh Schedule of
the Constitution, then in those cases there would be no scope
for the State Government to exercise its power at all under B
Section 432 Code of Criminal Procedure In the event of the
State Government getting jurisdiction as the Appropriate
Government and after complying with the requirement, namely,.
any application for remission being made by the person
convicted and after obtaining the report of the concerned c
Presiding Officer as required under Section 432(2), if Section
435(1 )(a) or (b) or (c) is attracted, then the question for
consideration would be whether the expression "Consultation"
is mere 'Consultation' or to be read as "Concurrence" of the
Central Government. D
150. In this context, it will be advantageous to refer to the
Nine-Judge Constitution Bench decision of this Court reported
in Supreme Court Advocates on Record Association
(supra). In the majority judgment authored by Justice J.S.
Verma, the learned Judge while examining the question E
referred to the Bench on the interpretation of Articles 124(2)
and 217 ( 1) of the Constitution as it stood which related to
appointment of Judges to the Supreme Court and High Courts
quoted the precautionary statement made by Dr. Rajendra
Prasad in his speech as President of the Constituent Assembly F
while moving for adoption of the Constitution of India. A portion
of the said quote relevant for our purpose reads as under:
"429 .......... There is a fissiparous tendency arising out
of various elements in our life. We have communal
differences, caste differences, language differences, G
provincial differences and so forth. It requires men of
· strong character, men of vision, men who will not
sacrifice the interests of the country at large for the sake
H
752 SUPREME COURT REPORTS [2015] 14 S.C.R.
A of smaller groups and areas and who will rise over the
prejudices which are born of these differences. We can
only hope that the country will throw up such men in
abundance .... In India today I feel that the work that
confronts us is even more difficult than the work which
B we had when we were engaged in the struggle. We did
not have then any conflicting claims to reconcile, no loaves
and fishes to distribute, no power to share. We have all
these now, and the temptations are really great. Would
to God that we shall have the wisdom and the strength
c to rise above them and to serve the country which we
have succeeded in liberating".
151. Again in paragraph 432, the principle is stated
as to how construction of a Constitutional Provision is to be
analyzed which reads as under:
D
"432 . .......... A fortiori any construction of the
Constitutional provisions which conflicts with this
Constitutional purpose or negates the avowed object has
to be eschewed. being opposed to the true meaning and
spirit of the Constitution and, therefore, an alien concept."
E
(Emphasis added)
152. By thus laying down the broad principles to be
applied, considered the construction of the expression
"Consultation" to be made with the Chief Justice of India for
F the purpose of composition of higher judiciary as used in Article
124(2) and 217(1) of the Constitution and held as under in
paragraph 433:
"433. It is with this perception that the nature of primacy,
if any, of the Chief Justice of India, in the present context,
G
has to be examined in the Constitutional scheme. The
hue of the word "Consultation", when the 'Consultation'
is with the Chief Justice of India as the head of the Indian
Judiciary, for the purpose of composition of higher
H
UNION OF INDIA v. V. SRIHARAN@ MURUGAN 753
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
judiciary, has to be distinguished from the colour the same A
word "Consultation" may take in the context of the
executive associated in that process to assist in the
selection of the best available material."
153. Thereafter tracing the relevant provisions in the pre-
Constitutional era, namely, the Government of India Act, 1919, 8
and the Government of India Act, 1935, wherein the
appointment of Judges of the Federal Court and the High
Courts were in the absolute discretion of the Crown or in other
words, of the Executive with no specific provision for
'Consultation' with the Chief Justice in the appointment C
process, further noted, the purpose for which the obligation of
"Consultation" with the Chief Justice of India and the Chief
Justice of the High Court in Articles 124(2) and 217(1) came
to be incorporated was highlighted. Thereafter, the Bench
expressed its reasoning as to why in the said context, the D
expression "Consultation" was used inste_ad of
"Concurrence". Paragraph 450 of the said judgment gives
enough guidance to anyone dealing with such issue which reads
as under:
E
"450. It is obvious, that the provision for 'Consultation'
with the Chief Justice of India and, in the case of the High
Courts, with the Chief Justice of the High Court, was
introduced because of the realisation that the Chief
Justice is best equipped to know and assess the worth F
of the candidate, and his suitability for appointment as a
superior Judge; and it was also necessary to eliminate
political influence even at the stage of the initial
appointment of a Judge, since the provisions for securing
his independence after appointment were alone not . G
sufficient for an independent judiciary. At the same time,
the phraseology used indicated that giving absolute
discretion or the power of veto to the Chief Justice of
India as an individual in the matter of appointments was
H
754 SUPREME COURT REPORTS [2015] 14 S.C.R.
A not considered desirable, so that there should remain
some power with the executive to be exercised as a
check, whenever necessary. The indication is. that in the
choice of a candidate suitable for appointment. the
opinion of the Chief Justice of India should have the
B greatest weight: the selection should be made as a result
of a participatory consultative process in which the
executive should have power to act as a mere check on
the exercise of power by the Chief Justice of India, to
achieve the Constitutional purpose. Thus. the executive
c element in the appointment process is reduced to the
minimum and any political influence is eliminated. It was
for this reason that the word "Consultation" instead of
"Concurrence" was used, but that was done merely to
indicate that absolute discretion was not given to anyone,
o not even to the Chief Justice of India as an individual,
much less to the executive, which earlier had absolute
discretion under the Government of India Acts."
(Emphasis added)
E 154. We must state that in the first place, whatever stated
by the said larger Constitution Bench while interpreting an
expression in a Constitutional provision, having regard to its
general application can be equally applied while interpreting
a similar expression in any other statute. We find that the basic
F principles set out in the above quoted paragraphs of the said
decision can be usefully referred to, relied upon and used as
a test while examining a similar expression used, namely, in
Section 435(1) of Code of Criminal Procedure. While quoting
the statement of Dr. Rajendra Prasad, what was highlighted
was the various differences that exist in our country including
G 'provincial differences', the necessity to ensure that men will
not sacrifice the interests of the country at large for the sake of
smaller groups and areas, the existence of conflicting claims
to reconcile after our liberation, and the determination to save
the country rather than yielding to the pressure of smaller
H
UNION OF INDIA v. V. SRI HARAN @MURUGAN 755
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
groups. It was also stated in the context of Articles 124(2) and A
217(1) as to how the independence of judiciary to be the
paramount criteria and any construction that conflict with such
said avowed object of the Constitution to be eschewed.
Thereafter, while analyzing the primacy of the Chief Justice of
India for the purpose of appointment of Judges, analyzed as B
to how our Constitutional functionary qua the others who
together participate in the performance of the function assumes
significance only when they cannot reach an agreed
conclusion. It was again stated as to see who would be best
equipped and likely to be more correct for achieving the C
purpose and perform the task satisfactorily. It was stated that
primacy should be in one who qualifies to be treated as the
'expert' in the field and comparatively greater weight to his .
opinion may then to be attached. We find that the above tests
indicated in the larger Constitution Bench judgment can be o
applied in a situation like the one which we are facing at the
present juncture.
155. Again in a recent decision of this Court reported in
R.A. Mehta (Retired) (supra). to which one of us was a party
(Fakkir Mohamed Ibrahim Kalifulla, J.) it was held as under in E
paragraph 32:
"32. Thus, in view of the above, the meaning of
"Consultation" varies from case to case, depending upon
its fact situation and the context of the statute as well as F
the object it seeks to achieve. Thus, no straitjacket
formula can be laid down in this regard. Ordinarily,
'Consultation' means a free and fair discussion on a
particular subject, revealing all material that the parties
possess in relation to each other and then arriv'ing at a
decision: However, in a situation where one of the G
consultees has primacy of opinion under the statute,
either specifically contained in a statutory provision, or
by way of implication, 'Consultation' may mean
'Concurrence'. The court must examine the fact situation
H
756 SUPREME COURT REPORTS [2015] 14 S.C.R.
A in a given case to determine whether the process of
'Consultation' as required under the particular situation
did in fact stand complete."
(Emphasis added)
156. The principles laid down in the larger Constitution
B Bench decision reported in Supreme Court Advocates on
Record Association (supra) was also followed in N.
Kannadasan (supra). ·
157. While noting the above principles laid down in the
c larger Constitution Bench decision and the subsequent
decisions on the interpretation of the expression, we must also
duly refer to the reliance placed upon the decision in S.R.
Bommai (supra), Johri Mal (supra) and Justice
Chandrashekaraiah (Retired) (supra). The judgment in S.R.
0 Bommai (supra) is again a larger Constitution Bench of Nine-
Judges known as Bommai case (supra). in which our
attention was drawn to paragraphs 274 to 276, wherein, Justice
B.P. Jeevan Reddy pointed out that 'federation' or 'federal form
of Government' has no fixed meaning, that it only broadly
E indicates a division of powers between the Centre and the
States, and that no two federal Constitutions are alike. It was
stated that, therefore, it will be futile to try to ascertain and fit
our Constitution into any particular mould. It was also stated
that in the light of our historical process and the Constitutional
F evolution, ours is not a case of independent States coming
together to form a federation asjn the case of U.S.A. The
learned judge also explained that the founding fathers of our
Constitution wished to establish a strong Centre and that in
the light of the past history of this sub-continent such a decision
was inevitably taken perforce. It was also stated that the
G establishment of a strong Centre was a necessity. It will be
appropriate to extract paragraph 275 to appreciate the
analysis of the scheme of the Constitution made by the learned
Judge which reads as under:
H
UNION OF INDIA v. V. SRIHARAN @MURUGAN 757
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
"275. A review of the provisi9ns of the Constitution shows A
unmistakably that while creating a federation, the
Founding Fathers wished to estatilish a strong Centre.
In the light of the past history of this sub-continent, this
was probably a natural and necessary decision. In a land
as varied as India is, a strong Centre is perhaps a B
necessity. This bias towards Centre is reflected in the
distribution of legislative heads between the Centre and
States. All the more important heads of legislation are
placed in List I. Even among the legislative heads
mentioned in List II, several of them, e.g., Entries 2, 13, c
17, 23, 24, 26, 27, 32, 33, 50, 57 and 63 are either limited
by or made subject to certain entries in List I to some or
the other extent. Even in the Concurrent List (List 111 ), the
parliamentary enactment is given the primacy,
irrespective of the fact whether such enactment is earlier o
or later in point of time to a State enactment on the same
subject-matter. Residuary powers are with the Centre.
By the 42nd Amendment, quite a few of the entries in
List II were omitted and/or transferred to other lists. Above
all, Article 3 empowers Parliament to form new States E
out of existing States either by merger or division as also
to increase, diminish or alter the boundaries of the States.
In the process, existing States may disappear and new
ones may come into existence. As a result of the
Reorganisation of States Act, 1956, fourteen States and F
six Union Territories came into existence in the place of
twenty-seven States and one area. Even the names of
the States can be changed by Parliament unilaterally. The
only requirement, in all this process, being the one'
prescribed in the proviso to Article 3, viz., ascertainment G
of the views of the legislatures of the affected States.
There is single citizenship, unlike USA. The judicial organ.
one of the three organs of the State, is one and single for
the entire country- again unlike USA, where you have
the federal judiciary and State judiciary separately. H
758 SUPREME COURT REPORTS [2015] 14S.C.R.
A Articles 249 to 252 further demonstrate the primacy of
Parliament. If the Rajya Sabha passes a resolution by 2/
3rd majority that in the national interest, Parliament should
make laws with respect to any matter in List II, Parliament
can do so (Article 249), no doubt, for a limited period.
B During the operation of a Proclamation of emergency,
Parliament can make laws with respect to any matter in
List II (Article 250). Similarly, Parliament has power to
make laws for giving effect to International Agreements
(Article 253 ). So far as the finar~es are concerned, the
C States again appear to have been placed in a less
favourable position, an aspect which has attracted a
good amount of criticism at the hands of the States and
the proponents of the States' autonomy. Several taxes
'are collected by the Centre and made over, either partly
o or fully, to the States. Suffice it to say that Centre has
been made far more powerful vis-a-vis the States.
Correspondinoly, several obligations too are placed upon
the Centre including the one in Article 355-the duty to
protect every State against external aggression and
E internal disturbance. Indeed, this very article confers
greater power upon the Centre in the name of casting an
obligation upon it, viz., "to ensure that the Government of
every State is carried on in accordance with the
provisions of this Constitution". It is both a responsibility
F and a power."
158. After r.1aking reference to the division of powers
set out in the various Articles as well as the Lists I to 111 of
Seventh SchedulB and its purported insertion in the
Constitutional provisions, highlighted the need for empowering
G the Centre on the higher side as compared with the States
while also referring to the corresponding obligations of the
Centre. While referring to Article 355 of the Constitution in that
context, it was said "the duty to protect every State against
external aggression and internal disturbance. Indeed this very
H
UNION OF INDIA v. V. SRIHARAN @MURUGAN 759
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
Article confers greater power upon the Centre in the name of A
casting an obligation upon it (viz.) to ensure that the
Government of every State is carried on in accordance with
the provisions of this Constitution". It is both a responsibility
and a power. Simultaneously, in paragraph 276, the learned
Judge also noted that while under the Constitution, greater B
power is conferred upon the Centre viz-a-viz the States, it does
not mean that States are mere appendages of the Centre and
that within the sphere allotted to them, States are supreme. It
was, therefore, said that Courts should not adopt and approach,
an interpretation which has the effect of or tend to have the. c
effect of whittling down the powers reserved to the States.
Ultimately, the learned Judge noted a word of caution to
emphasize that Courts should be careful not to upset the
delicately crafted Constitutional scheme by a process of
interpretation. D
159. In Johri Mal (supra), this Court considered the
effect of the expression "Consultation" contained in The Legal
Remembrancer's Manual; in the State of Uttar Pradesh which
provides in Clause 7.03 the requirement of 'Consultation' by
ttie District Officer with the District Judge before considering E
anyone for being appointed as District Government council. In
the said judgment it was noticed that in Uttar Pradesh, the State
government by way of amendment omitted sub-sections (1 ),
(4) (5) and (6) of Section 24 which provided for "Consultation"
with the High Court for appointment of Public Prosecutor for F
the High Court and with District Judge for appointment of such
posts at the District level. Therefore, the only proviso akin to
. such prescription was made only in The Legal
Remembrancer's Manual which is a compilation of executive
order and not a 'Law' within the meaning ·of Article 13 of the G
Constitution. In the light of the said situation, this Court while
referring to Supreme Court Advocates on Record
Association (supra) made a distinction as to how the
appointment of District Governrnent counsel cannot be
H
760 SUPREME COURT REPORTS (2015] 14 S.C.R.
A equated with the appointment of High Court Judges and
Supreme Court Judges in whose appointment this Court held
that the expression "Consultation" would amount to
"Concurrence". It was, however, held that even in the case of
appointment of District Government counsel, the 'Consultation'
B by the District Magistrate with the District Judge should be an
effective one. Similarly, in the judgment reported in Justice
Chandrasekaraiah (Retd.) (supra) this Court considered the
expression "Consultation" occurring in Section 3 (2) (a) (b) of
the Karnataka Lok Ayukta Act, 1984 relating to appointment
C of Lokayukta and Upa-Lokayukta, took the view that while
'Consultation' by the Chief Minister with the Chief Justice as
one of the consultees is mandatory, since the appointment to
those positions is not a judicial or Constitutional authority but
is a sui generis quasi judicial authority, 'Consultation' will not
D amount to "Concurrence". Therefore, the said judgment is
also clearly distinguishable.
160. Having considered ttie submissions of the
respective counsel for the Union of India, State of Tamil Nadu
and the other counsel and also the larger Com;titution Bench
E decisions and the subsequent decisions of this Court as well
as the specific prescription contained in Section 435(1 )(a) read
alongwithArticles72, 73(i)(a), 161and162oftheConstitution,
the following principles can be derived to note how and in what
manner the expression "Consultation" occurring in Section
F 435(1 )(a) can be construed:-
(a) Section 435(1) mandatorily requires the State
Government, if it is ~he 'Appropriate Government' to
consult the Central Government if the consideration of
grant of remission or commutation under Section 432 or
G
433 in a case which falls within any of the three sub-
clauses (a)(b)(c) of Section 435(1 ).
(b) The expression "Consultation" may mean differently
in different situation depending on the nature and
H purpose of the statute.
UNION OF INDIA v. V. SRI HARAN@ MURUGAN 761
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
(c) When it came to the question of appointment of judges A
to the High Court and the Supreme Court, since it pertains
to high Constitutional office, the status of Chief Justice
of India assumed greater significance and primacy and,
therefore, in that context, the expression "Consultation"
would only mean "Concurrence". B
(d) While considering the appointment to the· post of
Chairman of State Consumer Forum, since the said post
comes within four carriers of judicial post having regard
to the nature of functions to be performed, 'Consultation'
with the Chief ·Justice of the High Court would give C
primacy to the Chief Justice.
(e) The founding fathers of our Nation wished to establish
a strong Centre taking into account the past history of
this subcontinent which was under the grip of very many D
foreign forces by taking advantage of the communal
differences, caste differences, language differences,
provincial differences and so on which necessitated men
of strong character, men of vision, men who will not
sacrifice the interest of the Nation for the sake of smaller E
groups and areas and who will rise above the prejudices
which are born of these differences, as visualized by the
first President of this Nation Dr. Rajendra Prasad.
(f) Again in the golden words of that great personality, in
the pre-independence era while we were engaged in the F
struggle we did not have any conflicting claims to
reconcile, no loaves and fishes to distribute, no power to
share and we have all these now and the temptations
are really great. Therefore, we should rise above all these,
have the wisdom and strength and save the country which G
we got liberated after a great struggle.
(g) The ratio and principles laid down by this Court as
regards the interpretation and construction of
Constitutional provisions which conflicts with the
H
762 SUPREME COURT REPORTS [2015] 14 S.C.R.
A Constitutional goal to be achieved should be eschewed
and interest of the Nation in such situation should be the
paramount consideration. Such principles laid down in
the said context should equally apply even while
interpreting a statutory provision having application at
B the National, level in order to achieve the avowed object
of National integration and larger public interest
(h) The nature of 'Consultation' contemplated in Section
435(1) (a) has to be examined in the touchstone of the
above principles laid down by the larger Bench judgment
c in Supreme Court Advocates on Record Association
(supra). In this context, the specific reference made
therein to the statement of Dr. Rajendra Prasad, namely,
where various differences that exist, in our country
including provincial differences, the necessity to ensure
D that men will not sacrifice the interest of the country at
large, for the sake of smaller groups and areas assumes
significance.
(i) To ascertain, in this context, when more than one
authority or functionary participate together in the
E
performance of a function, who assumes significance,
keeping in mind the various above principles and
objectives to be achieved, who would be best equipped
and likely to be more correct for achieving the purpose
and perform the task satisfactorily in safeguarding the
F
interest of the entire community of this Great Nation.
Accordingly, primacy in one who qualifies to be treated
as in know of things far better than any other, then
comparatively greater weight to their opinion and
decision to be attached.
G
0) To be alive to the real nature of Federal set up, we
have in our country, which is not comparable with any
other country and having extraordinarily different features
in different States, say different religions, different castes,
H
UNION OF INDIAv. V. SRIHARAN@MURUGAN 763
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
.different languages, different cultures, vast difference A
between the poor and the rich, not a case of independent
States coming together to form a Federation as in the
case of United States of America. Therefore, the absolute
necessity to establish a strong Centre to ensure that when
it comes to the question of Unity of the Nation either from B
internal disturbance or any external aggression, the
interest of the Nation is protected from any evil forces.
The establishment of a strong Centre was therefore a
necessity as felt by our founding fathers of the Nation. In .,
this context Article 355 of the Constitution requires to bec
noted under which, the Centre is entrusted with the duty
to protect every State against external aggression and
internal disturbance and also to ensure that the
Government of every State is carried on in accordance
with the provisions of the Constitution. However, within o
the spheres allotted to the respective States, they ere
supreme.
(k) In the light of the above general principles, while
interpreting Section 435(1 )(a) which mandates that any
State Government while acting as the 'Appropriate E
Government' for exercising its powers under Sections
432 and 433 of Code of Criminal Procedure and
consider for remission or commutation to necessarily
consult the Central Government. In this context the
requirement of the implication of Section 432(7) (a) has F
to be kept in mind, more particularly in the light of the
prescription contained in Article 73(1 )(a) and Article 162 ·
read along with its proviso, which asserts the status of
the Central Government Authorities as possessing all
pervasive right to hold the Executive Power by virtue of G
express conferment under the Constitution or under any
law made by the Parliament though the State Legislature
may also have the power to make laws on those subjects.
764 SUPREME COURT REPORTS [2015] 14 S.C.R.
A (I) In a situation as the one arising in the above context, it
must be stated, that by virtue of such status available
with the Central Government possessing the Executive
Power, having regard to the pronouncement of the larger
Constitution Bench decision of this Court in Supreme
B Court Advocates on Record Association (supra) and
S.R. Bommai (supra), the Executive Power of the
Center should prevail over the State as possessing higher
Constitutional power specifically adorned on the Central
Government under Article 73(1 )(a).
c (m) Cases, wherein, the investigation is held by the
agencies under the Delhi Special Police Establishment
Act, 1946 or by any other agency engaged to make
investigation into an offence under the Central Act other
than the Code of Criminal Procedure, and where such
D offences investigated assumes significance having
regard to the implication that it caused or likely to cause
in the interest of the Nation or in respect of National
figures of very high status by resorting to diabolic criminal
conduct at the instance of any person whether such
E person belong to this country or of any foreign origin,
either individually or representing anybody of personnel
or an organization or a group, it must be stated that such
situation should necessarily be taken as the one coming
within the category of internal or external aggression or
F disturbance and thereby casting a duty on the Centre as
prescribed under Article 355 of the Constitution to act in
the interest of the Nation as a whole and also ensure that
the Government of every State is carried in accordance
with the provisions of the Constitution. Such situation
G cannot held to be interfering with the independent
existence of the State concerned.
(n) Similar test should be applied where application of
Section 435(1) (b) or (c). It can be visualized that where
the property of the Central Government referred to relates
H
..
UNION OF INDIA v. V. SRI HARAN @ MURUGAN 765
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
to the security borders of this country or the property in A
the control and possession of the Army or other security
forces of the country or the warships or such other
properties or the personnel happen to be in the services
of the Centre holding very sensitive positions and in
possession of very many internal secrets or other B
vulnerable information and indulged in conduct putting
the interest of the Nation in peril, it cannot be said that in
such cases, the nature of 'Consultation' will be a mere
formality. It must be held that even in those cases the
requirement of 'Consultation' will assume greater c
significance and primacy to the Center.
161. It must also be noted that the nature of requirement
contemplated and prescribed in Section 435(1) and (2) is
distinct and different. As because the expression
"Concurrence" is used in sub-section (2) it cannot be held D
that the expression "Consultation" used in sub-section (1) is
lesser in force. As was pointed out by us in sub-para 'n', the
situations arising under sub~section (1) (a) to (c) will have far
more far reaching consequences if allowed to be operated
upon without proper check. Therefore, even though the E
· expression used in sub-section (1) is 'Consultation', in effect,
the said requirement is to be expressed far more strictly and
with utmost care and caution, as each one of the sub-clauses
(a) to (c) contained in the said sub-section, if not properly
applied in its context may result in serious violation of F
Constitutional mandate as has been set out in Article 355 of
the Constitution. It is therefore imperative that it is always safe
and appropriate to hold that in those situations covered by
sub-clauses (a) to (c) of Section 435(1) falling within the
jurisdiction of Central Government, it will assume primacy and G
consequently the process of "Consultation" should in reality
be held as the requirement of "Concurrence".
162. For our present purpose, we can apply the above
principles to the cases which come up for consideration,
H
766 SUPREME COURT REPORTS [2015] 14 S.C.R.
A including the one covered by the present Writ Petition. Having
paid our detailed analysis as above on the various questions,
we proceed to answer the questions in seriatim.
163. Answer to the preliminary objection as to the
maintainability of the Writ Petition:
B
Writ Petition at the instance of Union of India is
maintainable.
Answers to the questions referred in seriatim
Question 52.1 Whether imprisonment for life in terms
c of Section 53 read with Section 45 of the Penal Code
meant imprisonment for rest of the life of the prisoner or
a convict undergoing life imprisonment has a right to claim
remission and whether as per the principles enunciated
in paras 91 to 93 of Swamy Shraddananda (2), a special
D • category of sentence may be made for the very few cases
where the death penalty might be substituted by the
punishment of imprisonment for life or impris6nmentfor
a temi in excess of fourteen years and to put that category
beyond application of remission?
E
Ans. Imprisonment for life in terms of Section 53 read
with Section 45 of the Penal Code only means imprisonment
for rest of life of the convict. The right to claim remission,
commutation, reprieve etc. as provided under Article 72 or
F Article 161 of the Constitution will always be available being
Constitutional Remedies untouchable by the Court.
We hold that the ratio laid down in Swamy
· Shraddananda (supra) that a special category of sentence;
instead of death can be substituted by the punishment of
G imprisonment for life or fora term exceeding 14 years and put
that category beyond application of remission is well-founded
and we answer the said question in the affirmative.
Question No.52.2 Whether the "Appropriate
_ Government" is permitted to exercise the power of
H
UNION OF INDIA v. V. SRI HARAN @ MURUGAN 767
[FAKKtR MOHAMED IBRAHIM KALIFULLA, J.]
remission under Sections 432/433 of the Code after the A
parallel power has been exercised by the President under
Article 72 or the Governor under Article 161 or by this
Court in its Constitutional power under Article 32 as in
this case?
Ans. The exercise of power under Sections 432 and 433 · B
of Code of Criminal Procedure will be available to the
Appropriate Government even if such consideration was made
earlier and exercised under Article 72 by the President or under
Article 161 by the Governor. As far as the application of Article
32 of the Constitution by this Court is concerned, it is held that C
the powers under Sections 432 and 433 are to be exercised
by the Appropriate Government statutorily and it is not for this
Court to exercise the said power and it is always left to be
decided by the Appropriate Government.
D
Question Nos. 52.3, 52.4 and 52.5
. 52.3 Whether Section 432(7) of the Code clearly gives
primacy to the Executive Power of the Union and
excludes the Executive Power of the State where the
power of the Union is coextensive? E
52.4 Whether the Union or the State has primacy over
the subject-matter enlisted in List Ill of the Seventh
Schedule to the Constitution of India for exercise of power
of remission?
F
52.5 Whether there can be two Appropriate Governments
in a given case under Section 432(7) of the Code?
Ans. The status of Appropriate Government whether
Union Government or the State Government will depend upon
the order of sentence passed by the Criminal Court as has G
been stipulated in Section 432(6) and in the event of specific
Executive Power conferred on the Centre under a law made
by the Parliament or under the Constitution itself then in the
.event of the conviction and sentence covered by the said law
9f the Parliament or the provisions of the Constitution even if H
768 SUPREME COURT REPORTS [2015] 14 S.C.R.
A the Legislature of the State is also empowered to make a law
on the same subject and coextensive, the Appropriate
Government will be the Union Government having regard to
the prescription contained in the proviso to Article 73('1 )(a) of
the Constitution. The principle stated in the decision in G.V.
B Ramanaiah (supra) should be applied. In other words, cases
which fall within the four corners of Section 432(7)(a) by virtue
of specific Executive Power conferred on the Centre, the same
will clothe the Union Government the primacy with the status of
Appropriate Government. Barring cases falling under Section
c 432(7)(a), in all other cases where the offender is sentenced
or the sentence order is passed within the territorial jurisdiction
of the concerned State, the State Government would be the
Appropriate Government.
Question 52.6 Whether suo motu exercise of power of
D remission under Section 432(1) is permissible in the
scheme of the section, if yes, whether the procedure
prescribed in sub-section (2) of the same section is
mandatory or not?
E Ans. No suo motu power of remission is exercisable
under Section 432(1) of Code of Criminal Procedure It can
only be initiated based on an application of the person
convicted as provided under Section 432 (2) and that ultimate
order of suspension or remission should be guided by the
F opinion to be rendered by the Presiding Officer of the
concerned Court.
Question No.52. 7 Whether the term "Consultation"
stipulated in Section 435(1) of the Code implies
"Concurrence"?
G Ans. Having regard to the principles culled out in ·
paragraph 160 (a)to (n), it is imperative that it is always safe
and appropriate to hold that in those situations covered by
sub-clauses (a) to (c) of Section 435(1) falling within the
jurisdiction of the Central Government it will assume primacy
H
UNION OF INDIA v. V. SRI HARAN@ MURUGAN 769
and consequently the process of "Consultation" in reality be A
held as the requirement of "Concurrence".
We thus answer the above questions accordingly.
UDAY UMESH LALIT, J. B
WRIT PETITION (CRL.l N0.48 OF 2014
1. This Writ Petition has been placed before the
Constitution Bench pursuant to reference made by a Bench of
three learned Judges of this Court in its order dated c
25.04.2014 1, hereinafter referred to as the Referral Order.
Background Facts:-
2. On the night of 21.05.1991 Rajiv Gandhi, former Prime
Minister of India was assassinated by a human bomb at D
Sriperumbudur in Tamil Nadu. With him fifteen persons
including nine policemen died and forty three persons suffered
injuries. Crime No.329 of 1991 of Sriperumbudur Police
Station was immediately registered. On 22.05.1991 a
notification was issued by the Governor of Tamil Nadu under E
Section 6 of Delhi Special Police EstablishmentAct (Act No.25
of 1946) according consent to the extension of the powers
and jurisdiction of the members of the Delhi Police
Establishment to the whole of the State of Tamil Nadu for the
investigation of the offences in relation to Crime No.329 of F
1991. This was followed by a notification issued by the
Government of India on 23.05.1991 under Section 5 read with
Section 6 of Act No.25 of 1946 extending such powers and
jurisdiction to the whole of the State of Tamil Nadu for
investigation of offences relating to Crime No. 329 of 1991.
After due investigation, a charge of conspiracy for offences G
under the Terrorist and Disruptive Activities (Prevention) Act,
1987 (TADA for short), Indian Penal Code (IPC for short),
Explosive Substances Act, 1908, Arms Act, 1959, Passport
1
2014 (11) sec 1
H
770 SUPREME COURT REPORTS [2015] 14 S.C.R.
A Act, 1967, Foreigners Act, 1946 and the Indian Wireless
Telegraphy Act, 1933 was laid against forty-one persons,
twelve of whom were already dead and three were marked as
absconding. Remaining twenty six persons faced the trial
before the Designated Court which found them guilty of all the
B charges and awarded punishment of fine of varying amounts,
rigorous imprisonment of different periods and sentenced all
of them to death. The Designated Court referred the case to
this Court for confirmation of death sentence of all the convicts.
The convicts also filed appeals against their conviction and
c the sentence awarded to them. These cases were heard
together.
3. In the aforesaid Death Reference Cases and the
appeals, this Court rendered its judgment on 11.05.1999,
reported in State through Superintendent of Police, CBI/
D SIT v. Nalini and others 2 . At the end of the judgment, the
following order was passed by this Court:
"732. The conviction and sentence passed by the trial
court of the offences of Section 3(3), Section 3(4) and
Section 5 of the TADAAct are set aside in respect of all
E
those appellants who were found guilty by the trial court
under the said counts.
733. The conviction and sentence passed by the trial
court of the offences under Sections 212 and 216 of the
F Indian Penal Code, Section 14 of the Foreigners Act,
1946, Section 25(1-B)oftheArmsAct, Section 5 of the
Explosive Substances Act, Section 12 of the Passport
Act and Section 6(1-A) of the Wireless Telegraphy Act,
1933, in respect of those accused who were found guilty
G of those offences, are confirmed. If they have already
undergone the period of sentence under those counts it
is for the jail authorities to release such of those against
whom no other conviction and sentence exceeding the
said period have been passed.
H 2 1999 (5) sec 253
UNION OF INDIAv. V. SRIHARAN @MURUGAN 771
[UDAY UMESH LAUT, J.]
734. The conviction for the offence under Section 120-B A
read with Section 302 Indian Penal Code as againstA-
1 (Nalini), A-2 (Santhan @ Raviraj), A-3 (Murugan @
Thas), A-9 (Robert Payas), A-10 (Jayakumar), A-16
(Ravichandran @ Ravi) and A-18 (Perarivalan @Ari vu)
is confirmed. B
735. We set aside the conviction and sentence of the
offences under Section 302 read with Section 120-B
passed by the trial court on the remaining accused.
736. The sentence of death passed by the trial court on c
A-1 (Nalini), A-2 (Santhan), A-3 (Murugan) and A-18
(Arivu) is confirmed. The death sentence passed onA-
9 (Robert), A-10 (Jayakumar) and A-16 (Ravichandran)
is altered to imprisonment for life. The Reference is
answered accordingly. D
737. In other words, exceptA-1 (Nalini),A-2 (Santhan),
A-3 (Murugan), A-9 (Robert Payas),A-10 (Jayakumar),
A-16 (Ravichandran) and A-18 (Arivu ), all the remaining
• appellants shall be set at liberty forthwith."
4. Two sets of Review Petitions were preferred against E
the aforesaid judgment dated 11.05.1999. One was by
convicts A-1, A-2, A-3 and A-18 on the question of death
sentence awarded to them. These convicts did not challenge
their conviction. The other was by the State through Central
Bureau of Investigation (CBI for short), against that part of the F
judgment which held that no offence under Section 3(3) of
TADA was made out. These Review Petitions were dismissed
by order dated 08.10.1999 3 • Wadhwa, J. with whom Quardi J.
concurred, did not find any error in the judgment sought to be
reviewed and therefore dismissed both sets of Review G
Petitions. Thomas J. opined that the Review Petition filed in
respect of A-1 (Nalini) alone be allowed and her sentence be
3
Suthendraraja alias Suthenthira Raja alias Santhan and others vs. State
through DSP/CBI, SIT, CHENNAI (1999) 9 SCC 323
H
772 SUPREME COURT REPORTS [2015] 14 S.C.R.
A altered to imprisonment for life. Thus, in the light of the order
of the majority, these Review Petitions were dismissed.
5. The convicts A-1, A-2, A-3 and A-18 then preferred
Mercy Petitions before the Governor of Tamil Nadu on
17.10.1999 which were rejected on 27.10.1999. The rejection
B was challenged before Madras High Court which by its order
dated 25.11.1999 set-aside the order of rejection and directed
reconsideration of those Mercy Petitions. Thereafter Mercy
Petition of A-1 (Nalini) was allowed while those in respect of
the convictsA-2, A-3 and A-18 were rejected by the Governor
C on 25.04.2000. Said convicts A-2, A-3 and A-18 thereafter
preferred Mercy Petitions on 26.4.2000 to the President of
India under Article 72 of the Constitution. The Mercy Petitions
were rejected by the President on 12.08.2011 which led to the
filing of Writ Petitions in Madras High Court. Those Writ
D Petitions were transferred by this Court to itself by order dated
01.05.20124 • By its judgment dated 18.02.2014 in II. Sriharan
@ Murugan v. Union of India and others 5 a Bench of three
learned Judges of this Court commuted the death sentences
awarded to convicts A-2, A-3 and A-18 to that of imprisonment
E for life and passed certain directions. Paragraph 32 of the
judgment is quoted hereunder:
"32.8 In the light of the above discussion and
observations, in the cases ofV. Sriharan alias Murugan,
T. Suthendraraja alias Santhan and A.G Perarivalan alias
F
Arivu, we commute their death sentence into
imprisonment for life. Life imprisonment means end of
one's life, subject to any remission granted by the
appropriate Government under Section 432 of the Code
of Criminal Procedure, 1973 which, in turn, is subject to
G
the procedural checks mentioned in the said provision
and further substantive check in Section 433-A of the
Code. All the writ petitions are allowed on the above
4 L.K. Venkat v. Union of India and others (2012) 5 SCC 292
H • 2014 (4J sec 242
UNION OF INDIA v. V. SRI HARAN @ MURUGAN 773
[UDAY UMESH LAUT, J.]
terms and the transferred cases are, accordingly, A
disposed of."
6. On the next day i.e. 19,02.2014 Chief Secretary,
Government of Tamil Nadu wrote to the Secretary, Government
of India, Ministry of Home Affairs that Government of Tamil Nadu
proposed to remit the sentence of life imprisonment imposed B
on convicts A-2, A-3 and A-18 as well as on the other convicts
namely A-9, A-10 and A-16. It stated that these six convicted
accused had already served imprisonment for 23 years, that
since the crime was investigated by the CBI, as per Section
435 of Cr.P.C. the Central Government was required to be C
consulted and as such the Central Government was requested
to indicate its views within three days on the proposal to remit
the sentence of life imprisonment and release those six
convicts.
·o
7. Union of India immediately filed Cr1.M.P. Nos.4623-
25 of 2014 on 20.02.2014 in the cases which were disposed
of by the judgment dated 18.02.20145 praying that the State of
Tamil Nadu be restrained from releasing the convicts. On
20.02.2014 said Crl.M.P. Nos.4623-25 of 2014 were taken E
up by this Court and the following order was passed:
"Taken on Board.
Issue notice to the State of Tamil Nadu; Inspector General
of Prisons, Chennai; the Superintendent, Central Prison, .
Vellore and the convicts viz. V. Sriharan@ Murugan, T. F
Suthendraraja@Santhan andA.G Perarivalan@Arivu
returnable on 6th March, 2014.
Mr. Rakesh Dwivedi, learned senior counsel accepts
notice on behalf of the State of Tamil Nadu and other two G
officers.
Till such date, both parties are directed to maintain status
quo prevailing as on date in respect of convicts viz. V.
Sriharan@ Murugan, T. Suthendraraja@Santhan and
H
774 SUPREME COURT REPORTS [2015] 14 S.C.R.
A A.G. Perarivalan@Arivu.
List on 6'h March, 2014."
8. On 20.02.2014 Union of India filed Review Petitions
being R.P. (Crl.) Nos.247-249 of 2014 against the judgment
B dated 18.02.20145 which were later dismissed on 01.04.2014.
It also filed Writ Petition No.48 of 2014 i.e. the present writ
petition on 24.02.2014 with following prayer:
"(a) Issue an appropriate writ in the nature of a
mandamus, or certiorari, and quash the letter no.58720/
C Cts IA/2008 dated 19.02.2014 and the Decision of the
Respondent no.8, Government of Tamil Nadu to consider
commutation/remission of the sentences awarded to the
Respondents No.1 to 7;"
9. After hearing rival submissions in the present writ
D petition, the Referral Order was passed which formulated and
referred seven questions for the consideration of the
Constitution Bench. Paragraph Nos. 49 and 52 to !54 of the
Referral Order were to the following effect:-
E "49. The issue of such a nature has been raised for the
first time in this Court, which has wide ramification in
determining the scope of application of power of
remission by the executives, both the Centre and the
State. Accordingly, we refer this matter to the Constitution
F Bench to decide the issue pertaining to whether once
power of remission under Articles 72 or 161 or by this
Court exercising constitutional power under Article 32 is
exercised, is there any scope for further consideration
for remission by the executive."
G 52. The following questions are framed for the
consideration of the Constitution Bench:
52.1. Whether imprisonment for life in terms of Section
53 read with Section 45 of the Penal Code meant
imprisonment for rest of the life of the prisoner or a convict
H
UNION OF INDIA v. V. SRI HARAN @ MURUGAN 775
[UDAY UMESH LAUT, J.]
undergoing life imprisonment has a right to claim A
remission and whether as per the principles enunciated
in paras 91 to 93 of Swamy Shraddananda(2)6 a
special category of sentence may be made for the very
few cases where the death penalty might be substituted
by the punishment of imprisonment for life or B
imprisonmentfor a term in excess of fourteen years and
to put that category beyond application of remission?
52.2. Whether the "appropriate Govemmenf' is permitted
to exercise the power of remission under Sections 432/
433 of the Code after the parallel power has been C
exercised by the President under Article 72 or the
Governor under Article 161 or by this Court in its
constitutional power under Article 32 as in this case?
52.3. Whether Section 432(7) of the Code clearly gives 0
primacy to the executive power of the Union and excludes
the executive power of the State where the power of the
Union is co-extensive?
52.4. Whether the Union or the State has primacy over
the subject-matter enlisted in List Ill of the Seventh E
Schedule to the Constitution of India for exercise of power
of remission?
52.5. Whether there can be two appropriate Governments
in a given case under Section 432(7) of the Code?
F
52.6. Whether suo motu exercise of power of remission
under Section 432(1) is permissible in the scheme of
the section, if yes, whetherthe procedure prescribed in
sub-section (2) of the same section is mandatory or not?
52.7. Whether the term "consultation" stipulated in G
Section 435(1) of the Code implies "concurrence"?
53. All the issues raised in the given case are of utmost
critical concern for the whole of the country, as the
• (2ooa) 13 sec 767
H
776 SUPREME COURT REPORTS [2015] 14 S.C.R.
·A decision on these issues will determine the procedure
for awarding sentences in the criminal justice system.
Accordingly, we direct to list Writ Petition (Crl.) No. 48 of
2014 before the Constitution Bench as early as possible,
preferably within a period of three months.
B 54. All the interim orders granted earlier will continue till
a final decision is taken by the Constitution Bench in Writ
Petition (Crl.) No. 48 of 2014."
10. In terms of the Referral Order, this petition came up
c before the Constitution Bench on 09.03.2014 which issued
notices to all the State Governments and pending notice the
State Governments were restrained from exercising power of
remission to life convicts. This order was subsequently varied
by this Court on 23.07.2015 and the order so varied is presently
0 in operation. While .the present writ petition was under
consideration by this Court, Curative Petitions Nos.22-24 of
2015 arising out of the dismissal of the review petition vide
order dated 01.04.2014 came up before this Court which were-
dismissed by order dated 28.07 .2015.
E PRELIMINARY OBJECTIONS
11. At the outset when the present writ petition was taken
up for hearing, Mr. Rakesh Dwivedi, learned Senior Advocate
appearing for the State of Tamil Nadu and Mr. Ram Jethmalani,
learned Senior Advocate appearing for the respondents
F convicts raised preliminary objections regarding maintainability
of this writ petition at the instance of Union of India. It was
argued that in the petition as originally filed, nothing was·
indicated about alleged violation of any fundamental right of
any one and it was only when the State had raised preliminary
G submissions, that additional grounds were preferred by Union
of India seeking to espouse the cause of the victims. It was
submitted that the issues sought to be raised by Union of India
as regards the powers and jurisdiction of the State of Tamil
UNION OF INDIAv. V. SRIHARAN@ MURUGAN 777
[UDAY UMESH LAUT, J.]
Nadu were essentially federal in nature and that the only remedy A
available for agitating such issues could be through a suit under
Article 131 of the Constitution. In response, it was submitted
by Mr. Ranjit Kumar, learned Solicitor General that neither at
the stage when the Referral Order was passed, nor at the stage
when notices were issued to various State Governments, such B
preliminary.objections were advanced and that the issue had
now receded in the background. It was submitted that after
Criminal Law Amendment Act 2013, rights of victims stand
duly recognized and that the instant crime having been
investigated by the CBI, Union of India in its capacity as parens C
patriae was entitled to approach this Court under Article 32. It
was submitted that since private individuals, namely the
convicts were parties to this /is, a suit under Article 131 would
not be a proper remedy. We find considerable force in the
submissions of the learned Solicitor General. Having o
entertained the petition, issued notices to various State
Governments, entertained applications for impleadment and.
granted interim orders, it would not be appropriate at this stage
to consider such preliminary submissions. At this juncture,
the following passage from the judgment of the Constitution E
Bench iri Mohd. Aslam alias Bhure v. Union of India and
others 7 would guide us:-
"10. On several occasions this Court has treated letters,
telegrams or postcards or news reports as writ petitions.
In such petitions, on the basis of pleadings that emerge F
in the case after notice to different parties, relief has been
· given or refused. Therefore, this Court would not approach
matters where public interest is involved in a technical or
a narrow manner. Particularly, when this Court has
entertained this petition, issued notice to different parties, G
new parties have been impleaded and interim order has
also been granted, it would not be appropriate for this
·Court to dispose of the petition on that ground."
'(2003J4 sec 1
H
778 SUPREME COURT REPORTS [2015114 s:c.R.
A In the circumstances, we reject the preliminary
submissions and proceed to consider the questions referred
to us.
DISCUSSION
B 12. We have heard Mr. Ranjit Kumar, learned Solicitor
General, assisted by Ms. V. Mahana, learned Senior Advocate
for Union of India. The submissions on behalf of the State
Governments were led by Mr. Rakesh Dwivedi, learned Senior
Advocate who appeared for the States of Tamil Nadu and West
c Bengal, Mr. Ram Jethmalani, learned Senior Advocate and
Mr. Yug Mohit Chaudhary, learned Advocate appeared for
respondents - convicts, namely, A-2, A-3, A-18, A-9, A-10 and
A-16. We have also heard Mr. Ravi Kumar Verma, learned
Advocate General for Karnataka, Mr. A.N.S. Nadkarni, learned
0 Advocate General for Goa, Mr. V. Giri, learned Senior Advocate
for State of Kerala, Mr. Gaurav Bhatia, learned Additional
Advocate General for State of Uttar Pradesh, Mr. T.R.
Andhyarujina, learned Senior Advocate for one of the
intervenors and other learned counsel appearing for other
E State Governments, Union Territories and other intervenors.
We are grateful for the assistance rendered by the learned
Counsel. ·
13. The Challenge raised in the instant matter is
principally to the competence of the State Government in
F proposing to remit or commute sentences of life imprisonment
of the respondents-convicts and the contention is that either
the State Government has no requisite power or fhat such
power stands excluded. The questions referred for our
consideration in the Referral Order raise issues concerning
G power of remission and commutation and as to which is the
"appropriate Government" entitled to exercise such power and
as regards the extent and ambit of such power. It would
therefore be convenient to deal with questions 3, 4 and 5 as
stated in Paras 52.3, 52.4 and 52.5 at the outset.
H
UNION OF INDIA v. V. SRIHARAN@ MURUGAN 779
[UDAY UMESH LAUT, J.]
Re: Question Nos.3, 4 and 5 as stated in para A
Nos.52.3, 52.4 and 52.5 of the Referral Order
52.3. Whether Section 432(7) of the Code clearlygives
primacy to the executive power of the Union and excludes
the executive power of the State where the power of the
Union is co-extensive? B
52.4. Whether the Union or the State has primacy over
the subject-matter enlisted in List Ill of the 71h Schedule
to the Constitution of India for exercise of power of
remission? c
52.5. Whether there can be two appropriate Governments
in a given case under Section 432(7) of the Code? ,
14. Powers to grant pardon and to suspend, remit or
commute sentences are c.onferred by Articles 72 and 161 of
the Constitution upon the President and the Governor. Arlicles D
72 and 161 are quoted here for ready reference:
"72. Power of President to grant pardons, etc., and to.
suspend, remit or commute sentences in certain cases.-
(1) The President shall have the power to grant pardons, E
reprieves, respites or remissions of punishment or to
suspend, remit or' commute the sentence of any person
convicted of any offence-
(a) in all cases where the punishment'or sentence is by a
Court Martial; F
(b) in all cases where the punishment or sentence is for
an offence against any law relating to a matter to which
the executive power of the Union extends;
(c) in all cases where the sentence is a sentence of death. G
(2) Nothing in sub-clause (a) of clause (1) shall affectthe .
power conferred by law on any officer of the Armed
Forces of the Union to suspend, remit or commute a
sentence passed by a Court Martial.
H
780 SUPREME COURT REPORTS [2015] 14 S.C.R.
A (3) Nothing in sub-clause (c) of clause (1) shall affect the
power to suspend, remit or commute a sentence of death
exercisable by the Governor of a State under any law for
the time being in force.
"161. Power of Governor to grant pardons, etc, and to
B suspend, remit or commute sentences in certain cases.-
The Governor of a State shall have the power to grant
pardons, reprieves, respites or remissions of punishment
or to suspend, remit or commute the sentence of any
person convicted of any offence against any law relating
c to a matter to which the executive power of the State
extends.
15. Before we turn to the matters in issue, a word about
the nature of power under Articles 72 and 161 of the
Constitution. In K.M. Nanavati v. State of Bombay8 it was
0
observed by Constitution Bench of this Court, " ....... Pardon
is one of the many prerogatives which have been recognized
since time immemorial as being vested in the sovereign,
wherever the sovereignty may lie ....... ".
E In Kehar Singh and another v. Union of India and
anothet8 Constitution Bench of this Court quoted with approval
the following passage from U.S. v. Benz [75 Lawyers Ed. 354,
358]
"The judicial power and the executive power over
F sentences are readily distinguiskable. To render judgment
is a judicial function. To carry the judgment into effect is
an executive function. To cut short a sentence by an act
of clemency is an exercise of executive power which
abridges the enforcement of the judgment, but does not
G alter it qua a judgment. To reduce a sentence by
amendment alters the terms of the judgment itself and is
. a judicial act as much as the imposition ofthe sentence
in the first instance."
' (1961) 1 SCR 497 at 516
H • (1989) 1sec204 at213
UNION OF INDIAv. V. SRIHARAN@ MURUGAN 781
[UDAY UMESH LAUT, J.]
The Constitution Bench further observed: A
"It is apparent that the power under Article 72 entitles
the President to examine the record of evidence of the
criminal case and to determine for himself whether the
case is one deserving the grant of the relief falling within
that power. We are of opinion that the President is entitled B
to go into the merits of the case notwithstanding that it
has been judicially concluded by the consideration given
to it by this Court."
In Epuru Sudhakar and another v. Government of c
Andhra Pradesh and others 10 Pasaya! J. speaking for the
Court observed:- ·
"16. The philosophy underlying the pardon power is that
"every civilised country recognises, and has therefore
provided for, the pardoning power to be exercised as an D
act of grace and humanity in proper cases. Without such
a power of clemency, to be exercised by sorne
department or functionary of a government, a country
would be most imperfect and .deficient in its political
morality, and in that attribute of deity whose judgments E
are always tempered with mercy.
17. The. rationale of the pardon ·power has .been
felicitously enunciated by the celebrated Holmes, J. of
the United States' Supreme Court in Biddle v. Perovich
[71 L Ed 1161 : 274 US480( 1927] in these words (L Ed F ·
at p. 1163):"Apardon in our days is not a private act of
grace from an individual happening to possess power.
It is a part of the constitutional scheme. When granted,
it is the determination of the ultimate authority that the
public welfare will be better seNed by inflicting less than G
what the judgment fixed."
In his concurring judgment Kapadia J. (as the learned
.. Chief Justice then was) stated: ·
10 (2oos) s sec 151 H
782 SUPREME COURT REPORTS [2015) 14 S.C.R.
A "65. Exercise of executive clemency is a matter of
discretion and yet subject to certain standards. It is not a
matter of privilege. It is a matter of performance of official
duty. It is vested in the President or the Governor, as the
case may be, not for the benefit of the convict only, but
B for the welfare of the people who may insist on the
performance of the duty. This discretion, therefore, has
to be exercised on public considerations alone. The
President and the Governor are the sole judges of the
sufficiency of facts and of the appropriateness of granting
c the pardons and reprieves. However, this power is an
enumerated power in the Constitution and its limitations,
if any, must be found in the Constitution itself. Therefore,
the principle of exclusive cognizance would not apply
when and if the decision impugned is in derogation of a
o constitutional provision. This is the basic working test to
be applied while granting pardons, reprieves, remissions
and commutations.
66. Granting of pardon is in no sense an overturning of a
judgment of conviction, but rather it is an executive action
E that mitigates or sets aside the punishment for a crime.
It eliminates the effect of conviction without addressing
the defendant's guilt or innocence. The controlling factor
in determining whether the exercise of prerogative power
is subject to judicial review is not its source but its subject-
F matter. It can no longer be said that prerogative power is
ipso facto immune from judicial review. An undue
exercise of this power is to be deplored. Considerations
of religion, caste or political loyalty are irrelevant and
fraught with discrimination. These are prohibited grounds.
G The Rule of Law is the basis for evaluation of all decisions.
The supreme quality of the Rule of Law is fairness and
legal certainty. The principle of legality occupies a central
plan in the Rule of Law. Every prerogative has to be
subject to the Rule of Law. That rule cannot be
H compromised on the grounds of political expediency. To
UNION OF INDIA v. V. SRI HARAN @ MURUGAN 783
[UDAY UMESH LAUT, J.]
go by such considerations would be subversive of the A
fundamental principles of the Rule of Law and it would
amount to setting a dangerous precedent. The Rule of
Law principle comprises a requirement of "Government
according to law". The ethos of"Govemment according
to law" requires the prerogative to be exercised in a B
manner which is consistent with the basic principle of
fairness and certainty. Therefore, the power of executive
clemency is not only for the benefit of the convict, but
while exercising such a power the President or the
Governor, as the case may be, has to keep in mind the c
effect of his decision on the family of the victims, the
society as a whole and the precedent it sets for the
future."
16. The power conferred upon the President under Article
72 is under three heads. The Governor on the other hand is D
conferred power under a sole head Le. in respect of sentence
for an offence against any law relating to the matter to which
the executive power of the State extends. Apart from similar
such power in favour of the President in relation to matter to
which the executive power of the Union extends, the President E
is additionally empowered on two counts. He is given exclusive
power in all cases where punishment or sentence is by a Court
Martial. He is also conferred power in all cases where the
sentence is a sentence of death. Thus, in respect of cases of
sentence of death, the power in favour of the President is F
regardles:i whether it is a matter to which the executive power
of the Union extends. Therefore a person convicted of any
offence and sentenced to death sentence under any law
relating to a matter to which the executive power of the State
extends, can approach either the Governor by virtue of Article G
161 or the President in terms of Article 72(1 )(c) or both. To
this limited extent there is definitely an overlap and powers
stand conferred concurrently upon the President and the
Governor.
H
784 SUPREME COURT REPORTS [2015] 14 S.C.R.
A 17. Articles 73 and 162 of the Constitution delineate the
extent of executive powers of the Union and the State
respectively. Said Articles 73 and 162 are as under:-
"73. Extent"of executive power of the Union-(1) Subject
to the provisions of this Constitution, the executive power
8 of the Union shall ~xtend-
(a) to the matters with respect to which Parliament has
power to make laws; and
(b) to the exercise of such rights, authority and jurisdiction
c as are exercisable by the Government of India by virtue
of any treaty or agreement:
Provided that the executive power referred to in sub-
clause (a) shall not, save as expressly provided in this
Constitution or in any law made by Parliament, extend in
D any State to matters with respect to which the Legislature.
of the State has also power to make laws.
(2) until otherwise provided by Parliament, a State and
any officer or authority of a State may, notwithstanding
E anything in this article, continue to exercise in matters
with respect to which Parliament has power to make laws
for that State such executive power or functions as the
State or officer of authority thereof could exercise
immediately before the commencement of this
F Constitution.
162. Extent of executive power of State.- Subject to the
· provisions of this Constitution, the executive power of a
State shall extend to the matters with respect to which
the Legislature of the State has power to make laws:
G Provided that in any matter with respect to which the
Legislature of .a State and Parliament have power to
make laws, the executive power of the State shall be
subject to, and limited by, the executive power expressly
conferred by this Constitution or by any law made by
H Parliament upon the Union or authorities thereof."
UNION OF INDIA v. V. SRI HARAN @MURUGAN 785
[UDAY UMESH LAUT, J.]
18. As regards clause (b) of Article 73(1) there is no A
dispute that in such matters the executive power of the Union
is absolute. The area of debate is with respect to clause (a) of
Article 73(1) and the Proviso to Article 73(1) and the inter-
relation with Article 162. Clause (a) of Article 73(1) states that
the executive power of the Union shall extend to the matters B
with respect to which Parliament has power to make laws.
Parliament has exclusive power in respect of legislative heads
mentioned in List I of the 7th Schedule whereas in respect of
the entries in the Concurrent List namely List Ill of the 7th
Schedule, both Parliament and the State have power to C
legislate in accordance with the scheme of the Constitution.
The Proviso to Article 73(1) however states, subject to the
saving clause therein, that the executive power so referred to
in sub-clause (a) shall not extend in any State to matters with
respect to which the legislature of the State has also power to o
make laws. The expression "also" is significant. Under the
Constitution the State has exclusive power to make laws with
respect to List II of the 7th Schedule and has also concurrent
power with respect to entries in Concurrent List namely List 111
of the Constitution. The Proviso thus deals with situations where E
the matter relates to or is with respect to subject where both
Parliament and the Legislature of the State are empowered to
make laws under the Concurrent List. Subject to the saving
clause mentioned in the Proviso, it is thus mandated that with
respect to matters which are in the Concurrent List namely F
where the Legislature of the State has also power to make
laws, the executive power of the Union shall not extend. The
saving clause in the Proviso deals with two exceptions namely,
where it is so otherwise expressly provided in the Constitution
or in any law made by Parliament. In other words, only in G
those cases where it is so expressly provided in the
Constitution itself or in any law made by Parliament, the
· executive power of the Union will be available. But for such
express provision either in the Constitution or in the law made
by Parliament which is in the nature of an exception, the general H
786 SUPREME COURT REPORTS [2015] 14 S.C.R.
A principle which must govern is that the executive power under
sub-clause (a) of Article 73 shall not extend in any State to
matters with respect to which the legislature of the State has
also power to make laws. In the absence of such express
provision either in the Constitution or in the law made by
B Parliament, the normal rule is that the executive power of the
Union shall not extend in a State to matters with respect to
which the legislature of the State has also power to make laws.
19. It will be instructive at this stage to see the debates
on the point in the Constituent Assembly. The proceedings
C dated 30" December, 1948 in the Constituen!Assembly11 show
that while draft Article 60 which corresponds to present Article
73 was being discussed, an Hon'ble Member voiced his
concern in following words:
D "B. Pocker Sahib Bahadur (Madras: Muslim): Mr. Vice-
President, this clause as it stands is sure to convert the
Federation into an entirely unitary form of Government.
This is a matter of very grave importance. Sir, we have
been going on under the idea, and it is professed, that
the character of the Constitution which we are framing is
E
a federal one. I submit, Sir, if this article, which gives even
executive powers with reference to the subjects in the
Concurrent Lisi to the Central Government, is to be
passed as it is, then there will be no justification at all in
calling this Constitution a federal one. It will be a
F
misnomer to call it so. It will be simply a camouflage to
call this Constitution a federal one with provisions like
this. It is said that it is necessary to give legislative powers
to the Centre with regard to certain subjects mentioned
in the Concurrent List, but it is quite another thing, Sir, to
G give even the executive powers with reference to them
to the Centre. These provisions will have the effect of
practically leaving the provinces with absolutely nothing.·
Even in the Concu.rrent List there is a large number of
H 11
Constituent Assembly Debate Vol. 7 Page 1129
UNION OF INDIAv. V. SRIHARAN @MURUGAN 787
[UDAY UMESH LAUT, J.]
subjects which ought not to have found place in it. We A
shall have to deal with them when the time comes. But
this clause gives even executive powers to the Centre
with reference to the subjects which are detailed in the
Concurrent List.. ...... "
After considerable debate on the point the clarification B
by Hon'ble Member Dr. B.R. Ambedkar is noteworthy. His view
was as under:
"The Honourable Dr. B.R. Ambedkar (Bombay :
General): Mr. Vice-President, Sir, I am sorry that I cannot c
accept either of the two amendments which have peen
moved to this proviso, but I shall state to the House very
briefly the reasons why I am not in a position to accept
these amendments. Before I do so I think I think it is
desirable that the House should know what exactly is the
0
difference between the position as stated in the proviso
and the two amendments which are moved to that
proviso. Taking the proviso as it stands, it lays down two
propositions. The first proposition is that generally the
authority to execute laws which relate to what is called E
the Concurrent field, whether the law is passed by the
Central Legislature or whether it is passed by the
Provincial or State Legislature, shall ordinarily apply to
the Province or the State. That is the first proposition
which this proviso lays down. The second proposition
which the proviso lays down is that if in any particular F
case Parliament thinks that in passing a law which relates
to the Concurrent field the execution ought to be retained
by the Central Government, Parliament shall have the .
power to do so. Therefore, the position is this; that in all G
cases, ordinarily, the executive authority so far as the
Concurrent List is concerned will rest with the units, the
Provinces as well as the States. It is only in exceptional
cases that the Centre may prescribe that the execution
of a Concurrent law shall be with the centre."
H
788 SUPREME COURT REPORTS (2015] 14 S.C.R.
A The first proposition as stated by Dr. Ambedkar was that
generally the authority to execute laws which relate to subjects
in the Concurrent field, whether the law was passed by the
Central Legislature nr by the State Legislature, was ordinarily
to be with the State. The second proposition pertaining to the
B Proviso was quite eloquent in that if in any particular case
Parliament thinks the execution ought to be retained by the
Centre, Parliament shall have the power to do so and that
save and except such express provision, in all cases, the
authority to execute insofar as the Concurrent List is concerned
c shall rest with the States.
20. In Rai Sahib Ram Jawaya Kapur and others v.
State of Punjab 12 this Court while dealing with Article 162 of
the Constitution, observed as under:-
" ....Thus under this article the executive authority of the
D
State is exclusive in respect to matters enumerated in
List II of Seventh Schedule. The authority also extends to
the Concurrent List except as provided in the Constitution
itself or in any law passed by the Parliament. Similarly,
Article 73 provides that the executive powers of the Union
E
shall extend to matters with respect to which the
Parliament has power to make laws and to the exercise
of such rights, authority and jurisdiction as are
exercisable by the Government of India by virtue of any
treaty or any agreement. The proviso en grafted on clause
F
( 1) further lays down that although with regard to the
matters in the Concurrent List the executive authority shall
be ordinarily left to be State it would be open to the
Parliament to provide that in exceptional cases the
executive power of the Union shall extend to these matters
G also. "(Emphasis added)
21. The same principle as regards the extent of
Executive Power of the Union and the State as stated in Articles
73 and 162 of the Constitution finds echo in Section 55A of
H 12 1955 (2) SCR 225
UNION OF INDIA v. V. SRIHARAN @MU RU GAN 789
[UDAY UMESH LAUT, J.]
the Indian Penal Code which defines appropriate Government A
as under:
"55A. Definition of "appropriate Government". - In
Sections 54 and 55 the expression "appropriate
Government" means:-
B
(a) in cases wtiere the sentence is a sentence of death
or is for an offence against any law relating to a matter to
which the executive power of the Union extends, the
Central Government; and
(b) in cases where the sentence (whether of death or · C
not) is for an offence against any law relating to a matter
to which the executive power of the State. extends, the
Government of the State within which the offender is
sentenced."
22. At this stage we may quote Sections 432 to 435 of D
the Code of Criminal Procedure, 1973 (hereinafter referred to
as Cr.P.C.) :-
"432. Power to suspend or remit sentences. (1)
When any person has been sentenced to punishment E
for an offence, the appropriate Government may, at any
time, without Conditions or upon any conditions which
the person sentenced accepts, suspend the execution
of his sentence or remit the whole or any part of the
punishment to which he has been sentenced. F
(2) Whenever an application is made to the appropriate
Government for the suspension or remission of a
sentence, the appropriate Government may require the.
presiding Judge of the Court before or by which the
conviction was had or confirmed, to state his opinion as G
to whether the application should be granted or refused,
together with his reasons for such opinion and also to
forward with the statement of such opinion a certified
copy of the record of the trial or of such record thereof as
exists. H
790 SUPREME COURT REPORTS [2015] 14 S.C.R.
A (3) If any condition on which a sentence has been
suspended or remitted is, In the opinion of the
appropriate Government, not fulfilled, the appropriate
Government may cancel the suspension or remission,
and thereupon the person in whose favour the sentence
B has been suspended or remitted may, if at large, be
arrested by any police officer, without warrant and
remanded to undergo the unexpired portion of the
sentence.
(4) The condition on which a sentence is suspended or
c remitted under this section may be one to be fulfilled by
the person in whose favour the sentence is suspended
or remitted, or one independent of his will.
(5) The appropriate Government may, by general rules
or special orders give directions as to the suspension of
D
sentences and ttie conditions on which petitions should
be presented and dealt with:
Provided that in the case of any sentence (other than a
sentence of fine) passed on a male person above the
E age of eighteen years, no such petition by the person
sentenced or by any other person on his behalf shall be
entertained, unless the person sentenced is in jail, and-
(a) where such petition is made by the person sentenced,
it is presented through the officer in charge of the jail ;
F or
(b) where such petition is made by any other person, it
contains a declaration that the person sentenced is in
jail.
G (6) The provisions of the above sub-sections shall also.
apply to any order passed by a Criminal Court under any
section of this Code or of any other law which restricts
the liberty of any person or imposes any liability upon
him or his property.
H
UNION OF INDIAv. V. SRIHARAN @MURUGAN 791
(UDAY UMESH LAUT, J.]
(7) In this section and in section 433, the expression A
"appropriate Government" means,-
(a) in cases where the sentence is for an offence against,
or the order referred to in sub-section (6) is passed under,
any law relating to a matter to which the executive power
of the Union extends, the Central Government; 8
(b) in other cases, the Government of the State within
which the offender is sentenced or the said order is
passed.
433. Power to commute sentence. The appropriate C
Government may, without the consent of the person
sentenced, commute-
(a) a sentence of death, for any other punishment
provided by the Indian Penal Code;
D
(b) a sentence of imprisonment for life, for imprisonment
for a term not exceeding fourteen years or for fine ;
(c) a sentence of rigorous imprisonment, for simple
imprisonment for any term to which that person might
have been sentenced, or for fine; E
(d) a sentence of simple imprisonment, for fine.
433A. Restriction on powers of remission or
Commutation in certain cases. Notwithstanding
anything contained in section 432, where a sentence of F
imprisonment for life is imposed on conviction of a
person for an offence for which death is one of the
punishments provided by law, or where a sentence of
death imposed on a person has been commuted under
section 433 into one of imprisonment for life, such person G
shall not be released from prison unless he had served
at least fourteen years of imprisonment.
434. Concurrent power of Central Government in
case of death sentences. The powers conferred.by
H
792 SUPREME COURT REPORTS [2015] 14 S.C.R.
A sections 432 and 433 upon the State Government may,
in the case of sentences of death, also be exercised by
the Central Government.
435. State Government to act after consultation with
Central Government in certain cases. (1) The powers
B conferred by sections 432 and 433 upon the State
Government to remit or commute a sentence, in any case
where the sentence Is for an offence-
(a) which was investigated by the Delhi Special Police
c Establishment constituted under the Delhi Special Police
Establishment Act, 1946 (25 of 1946), or by any other
agency empowered to make investigation into an offence
under any Central Act other than this Code, or
(b) which involved the misappropriation or destruction
D of, or damage to, any property belonging to the Central
Government, or
(c) which was committed by a person in the service of
the Central Government while acting or purporting to act ·
in the discharge of his official duty, shall not be exercised
E by the State Government except after consultatior with
the Central Government.
(2) No order of suspension, remission or commutation
of sentences passed by the State Government in relation
F to a person, who has been convicted of offences, some
of which relate to matters to which the executive power
of the Union extends, and who has been sentenced to
separate terms of imprisonment which are to run
concurrently, shall have effect unless an order for the
G suspension, remission or commutation, as the case may
be, of such sentences has also been made by the Central
Government in relation to the offences committed by such
person with regard to matters to which the executive
power of the Union extends."
H
UNION OF INDIA v. V. SRIHARAN @MURUGAN 793
[UDAY UMESH LAUT, J.]
23. As regards definition of appropriate Government, A
Section 432(7) of Cr.P.C. adopts a slightly different approach.
It defines Central Government to be the appropriate
Government in cases where the sentence is for an offence
against any law relating to a matter to which the executive
power of the Union extends. In that sense it goes by the same B
principle as in Article 73 of the Constitution and Section 55A
of the IPC. The residuary area is then left for the State
Government and it further states that in cases other than those
where the Central Government is an appropriate Government,
the Government of the Slate within which the offender is c
sentenced shall be the appropriate Government. In other
words, it carries the same essence and is not in any way
different from the principle in Article 73 read with Article 162
on one hand and Section 55A of the IPC on the other. The
specification as to the State where the offender is sentenced o
serves an entirely different purpose and helps in finding
amongst more than one State Governments which is the
appropriate Government as found in State of Madhya
Pradesh v. Ratan Singh and others 13, ·State of Madhya
Pradesh v. Ajit Singh and others 14, Hanumant Dass v. E
Vinay Kumar and others 15and Govt. of A.P. and others v.
M. T. Khan 16 • According to this provision, even if an offence is
committed in State A but if the trial takes place and the sentence
is passed in State B, it is the latter State which shall be the
appropriate Government. F
24. There is one more provision namely Section 435(2)
of Cr. P.C. Which needs to be considered at this stage·. It is
possible that in a given case the accused may be convicted
and sentenced for different offences, in respect of some of
which the executive power of the Union may extend and to the G
rest the executive power of the State may extend. Since the
"(1976) 3 sec 470
1
• (1976) 3 sec 616
15 (1982)2SCC177
1
• (2004) 1sec616
H
794 SUPREME COURT REPORTS [2015] 14 S.C.R.
A executive power either of the Union or the State is offence
specific, both shall be appropriate Governments in respect of
respective offence or offences to which the executive power
of the respective government extends. For instance, an
offender may be sentenced for an offence punishable under
B an enactment relatable to subject under List I of the Constitution
and additionally under the Indian Penal Code. Such eventuality
is taken care of by sub-section (2) of Section 435 and it is
stipulated that even if the State Government in its capacity as
an appropriate Government in relation to an offence to which
c the executive power of the State Government extends, were to
order suspension, remission or commutation of sentence in
respect of such offence, the order of the State Government
shall not have effect unless an appropriate order of suspension,
remission or commutation is also passed by the Central
o Government in relation to the offence(s) with respect to which
executive power of the Union extends. Relevant to note that it
is not with respect to a specific offence that both the Central
Government and State Government have concurrent power but
if the offender is sentenced on two different counts, both could
E be the appropriate governments in respect of that offence to
which the respective executive power extends.
25. It was submitted on behalf of the petitioner that if the
Executive Power is co-extensive with the Legislative Power
and the law making power of the State must yield to the
F Legislative Power of the Union in respect of a subject in the
Concurrent List, reading of these two principles would
inevitably lead to the conclusion that the executive power of
the Union takes primacy over that of the State thereby making
it i.e. the Central Government the appropriate Government
G under Section 432(7) of Cr. P. C. It was further submitted that it
was Parliament which made law contained in Cr.P.C. in
exercise of power relatable to Entry 1 and 2 of List 111 and that
the provisions in the IPC (existing law under Article 13) and
under the Cr. P.C., both relatable to the powers of Parliament,
H
UNION OF INDIA v. V. SRIHARAN @MURUGAN 795
[UDAY UMESH LAUT, J.]
which provide for "appropriate Government" as prescribed in A
Section 55Aof the IPC and 432(7) of the Cr.P.C. without any
validity enacted conflicting or amending law by the State, would
clearly show that it is the Union which has the primacy. In our
considered view, that is not the correct way to approach the
issue. For the purposes of Article 73(1) it is not material B
whether there is Union law holding the field but what is crucial
is that such law made by Parliament must make an express
provision or there must be such express provision in the
Constitution itself as regards executive power of the Union, in
the absence of which the general principle as stated above C
must apply. If the submission that since the IPC and Cr. P.C.
are relatable to the powers of Parliament, it is the executive
power of the Union which must extend to aspects covered by·
these legislations is to be accepted, the logical sequitor would.
be that for every offence under IPC the appropriate o
Government shall be the Central Government. This is not only
against the express language of Article 73(1) but would
completely overburden the Central Government.
26. In the instant case as the order passed by this Court
in State v. Nalini and others 2, the respondents-convicts were E
acquitted of the offences punishable under Section 3(3), 3(4)
and 5 of the TADA. Their conviction under various central laws
like Explosive Substances Act, Passport Act, Foreigners Act
and Wireless Telegraphy Act were all for lesser terms which
sentences, as on the date, stand undergone. Consequently, F
there is no reason or occasion to seek any remission in or
commutation of sentences on those counts. The.only sentence
remaining is one under Section 302 IPC which is life
imprisonment. It was submitted by Mr. Rakesh Dwivedi,
learned Senior Advocate that Section 302 IPC falls in Chapter G
XVI of the IPC relating to offences affecting the human body.
In his submission, Sections 299 to 377 IPC involve matters
directly related to "public order" which are covered by Entry 1
List 11. It being in the exclusive executive domain of the State .
H
796 SUPREME COURT REPORTS [2015] 14 S.C.R.
A Government, the State Government would be the appropriate
Government. It was further submitted that assuming Sections
302 read with Section 120B IPC are relatable to Entry 1 of
List Ill being part of the Indian Penal Code itself, then the issue
may arise whether Central Government or the State
B Government shall be the appropriate Government and resort
has to be taken to provisions of Articles 73 and 162 of the
Constitution to resolve the issue.
27. At this stage it would be useful to consider the
decision of this ~our! in G. V. Rama·naiah v. The
C Superintendent of Central Jail Rajahmundry and
others. 17• In that case the appellant was convicted of offences
punishable under Section 489-A to 489-D of IPC and
sentenced to imprisonment for 10 years. On a question
whether the State Government would be competent to remit
D the sentence of the appellant, this Court observed as under:
"9. The question is to be considered in the light of the
above criterion. Thus considered, it will resolve itself into
the issue: Are the provisions of Sections 489-A to 489-
D of the Penal Code, under which the petitioner was
E
convicted, a law relating to a matter to which the
legislative power of the State or the Union extends?
10. These four Sections were added to the Penal Code
under the caption, "Of Currency Notes and Bank Notes",
F by Currency Notes Forgery Act, 1899, in order to make
better provisions forthe protection of Currency and Bank
Notes against forgery. It is not.disputed; as was done
before the High Court in the application under Section
491 (1 ), Criminal Procedure Code, that this bunch of
G Sections is a law by itself. "Currency, coinage and legal
tender" are matters, which are expressly included in Entry
No. 36 of the Union List in the Seventh Schedule of the
Constitution. Entry No. 93 of the Union List in the same
Schedule specifically confers on the Parliament the
H 17 (1974)3SCC531
UNION OF INDIAv. V. SRIHARAN@MURUGAN 797
[UDAY UMESH LAUT, J.]
power to legislate with regard to "offences against laws A
with respectto any of the matters in the Union Lisf'. Read
together, these entries put it beyond doubt that Currency
Notes and Bank Notes, to which the offences under
Sections 489~A to 489-D relate, are matters which are
exclusively within the legislative competence of the Union B
Legislature. It follows therefrom that the offences for which
the petitioner has been convicted, are offences relating
to a matter.to which the executive power of the Union
extends, and the "appropriate Government" competent
to remit the sentence of the petitioner, would be the C
Central Government and not the State Government."
This Court went on to observe that the Indian Penal Code
is a compilation of penal laws, providing for offences relating
to a variety of matters, referable to the various entries in the
different lists of the 7'h Schedule to the Constitution and that D
many of the offences in the Penal Code related to matters which
are specifically covered by entries in the Union list. Since the
offences in question pertained to subject matter in the Union
list, this Court concluded that the Central Government was the
appropriate Government competent to remit the sentence of E
the appellant. The decision in G. II. Ramanaiah thus clearly
lays down that it is the offence, the sentence in respect of which
is sought to be commuted or remitted, which determines the
question as to which Government is the appropriate
Government. - F
28. In Zameer Ahmed Latifur Rehman Sheikh v. State
of Maharashtra and others 18 challenge was raised to the
competence of the State Legislature to enact Maharashtra
Control of Organised Crime Act, 1999. While rejecting the G
challenge, it was observed by this Court as under:-
"48. From the ratio of the judgments on the point of public
order referred to by us earlier, it is clear that anything
that affects public peace or tranquillity within the State or
" (201 O) s sec 246 H
798 SUPREME COURT REPORTS [2015] 14 S.C.R.
A the Province would also affect public order and the State
Legislature is empowered to enact laws aimed at
containing or preventing acts which tend to or actually
affect public order. Even if the said part of MCOCA
incidentally encroaches upon a field under Entry 1 of the
B Union List, the same cannot be held to be ultra vires in
view of the doctrine of pith and substance as in essence
the said part relates to maintenance of public order which
is essentially a State subject and only incidentally
trenches upon a matter falling under the Union List.
c Therefore, we are of the considered view that it is within
the legislative competence of the State of Maharashtra
to enact such a provision under Entries 1 and 2 of List II
read with Entries 1, 2 and 12 of List Ill of the Seventh
Schedule of the Constitution."
D While considering the ambit of expression "public order''
as appearing in Entry 1 List II of the 7th Schedule to the
Constitution this Court referred to earlier decisions on the point
and arrived at the aforesaid conclusion. Similarly in People's
Union for Civil Liberties and another v. Union of lndia 19
E the validity of Prevention of Terrorism Act, 2002 and in Kartar
Singh v. State of Punjab 20 validity of TADA were questioned.
In both the cases it was observed that the Entry "public order''
in List 11 empowers the State to enact the legislation relating to
public order or security insofar as it affects or relates to a
F particular State and that the term has to be confined to disorder
of lesser gravity having impact within the boundaries of the
State and that activity of more serious nature which threatens
the security and integrity of the country as a whole would not
be within the field assi9ned to Entry 1 of List II. In both these
G cases the validity of Central enactments were under challenge
on the ground that they in pith and substance were relatable to
the subject under Entry 1 of List II. In both the cases the
challenges were negatived as the legislations in question dealt
1
• (2004 l 9 sec 5ao
H 20 (1994) 3 sec 569
UNION OF INDIA v. V. SRI HARAN @ MURUGAN 799
[UDAY UMESH LAUT, J.]
with "terrorism" in contra-distinction to the normal issues of A
"public order".
29. We are however concerned in the present case with
offence under Section 302 IPC simplicitor. The respondents-
convicts stand acquitted insofar as offences under the TADA
are concerned. We find force in the submissions of Mr. Rakesh 8
Dwivedi, learned Senior Advocate that the offence under
Section 302 IPC is directly related to "public order" under Entry
1 of List II of the 7111 Schedule to the Constitution and is in the
exclusive domain of the State Government. In our view the
offence in question is within the exclusive domain of the State C
Government and it is the executive power of the State which
must extend to such offence. Even if it is accepted for the
sake of argument that the offence under Section 302 IPC is
referable to Entry 1 of List Ill, in accordance with the principles
as discussed hereinabove, it is the executive power of the State D
Government alone which must extend, in the absence of any
specific provision in the Constitution or in the law made by
Parliament. Consequently, the State Government is the
appropriate Government in respect of the offence in question
in the present matter. It may be relevant to note that right from E.
K.M. Nanavati v. State of Bombay (supra) 8 in matters
. concerning offences under Section 302 IPC it is the Governor
under Article 161 or the State Government as appropriate
Government under the Cr.P.C. who have been exercising
appropriate powers. F
30. In the.light of the aforesaid discussion our answers
to questions 3, 4 and 5 as stated in paragraph 52.3, 52.4 and
52.5 are as under:
Our answer to Question 52.3 in Para 52.3 is:· G
Question 52.3. Whether Section 432(7) of the Code
clearly gives primacy to the executive power of the Union
and excludes the executive power of the State where the
power of the Union is co-extensive?
H
800 SUPREME COURT REPORTS [2015] 14S.C.R.
A Answer: The executive powers of the Union and the
State normally operate in different fields. The fields are well
demarcated. Keeping in view our discussion in relation to
Articles 73 and 162 of the Constitution, Section 55A of the
IPC and Section 432 (7) of Cr.P.C. it is only in respect of
B sentence of death, even when the offence in question is
referable to the executive power of the State, that both the
Central and State Governments have concurrent power under
Section 434 of Cr.P.C. If a convict is sentenced under more
than one offences, one or some relating to the executive power
c of the State Government and the other relating to the Executive
Power of the Union, Section 435(2) provides a clear answer.
Except the matters referred herein above, Section 432 (7) of
Cr. P.C. does not give primacy to the executive power of the
Union.
D Our Answer to Question posed in Para 52.4. is:-
Question 52.4. Whether the Union or the State has
primacy over the subject-matter enlisted in List Ill of the
7'h Schedule to the Constitution of India for exercise of
power of remission?
E
Answer: In respect of matters in list Ill of the 7"' Schedule
to the Constitution, ordinarily the executive power of the State
alone must extend. To this general principle there are two
exceptions as stated in Proviso to Articles 73(1) of the
F Constitution. In the absence of any express provision in the
Constitution itself or in any law made by Parliament, it is the
executive power of the State which alone must extend.
Our Answer to Question posed in Para 52.5. is:-
G
Question 52.5. Whether there can be two appropriate
Governments in a given case under Section 432(7) of
the Code?
Answer: There can possibly be two appropriate
Governments in a situation contemplated under Section 435
H
UNION OF INDIAv. V. SRIHARAN@MURUGAN 801
[UDAY UMESH LAUT, J.]
(2) of Cr.P.C .. Additionally, in respect of cases of death A
sentence, even when the offence is one to which the executive
power of the State extends, Central Government can also be
appropriate Government as stated in Section 434 of Cr.P.C ..
Except these two cases as dealt with in Section 434 and 435
(2) of Cr.P.C. there cannot be two appropriate Governments. B
Re: Question No.6 as stated in •para 52.6 of the
Referral Order
52.6. Whether suo motu exercise of power of remission
under Section 432(1) is permissible in the scheme of c
the section, if yes, whether the procedure prescribed in
sub-section (2) of the same section is mand(Jtory or not?
31. We now turn to the exercise of power of remission
under Section 432(1) of Cr.P.C .. Remissions are of two kinds.
The first category is of remissions under the relevant Jail Manual D
which depend upon the good conduct or behavior of a convict
while undergoing sentence awarded to him. These are
generally referred to as 'earned remissions' and are not
referable to Section 432 of Cr.P.C. but have their genesis in
the Jail Manual or any such Guidelines holding the field. In E
Shraddananda(2) 6 this aspect was explained thus:
"80. From the Prisons Acts and the Rules it appears that
for good conduct and fon:foing certain duties, etc. inside
the jail the prisoners are given some days' remission on
a monthly, quarterly or annual basis. The days of F
remission so earned by a prisoner are added to the
period of his actual imprisonment (including the period
undergone as an undertrial) to make up the term of
sentence awarded by the Court. This being the position,
the first question that arises in mind is how remission G
can be applied to imprisonment for life. The way in which
remission is allowed, it can only apply to a fixed term
and life imprisonment, being for the rest of life, is by nature
indeterminate."
H
802 SUPREME COURT REPORTS [2015) 14 S.C.R.
A The exercise of power in granting remission under
Section 432 is done in a particular or specific case whereby
the execution of the sentence is suspended or the whole or
any part of the punishment itself is remitted. The effect of
exercise of such power was succinctly put by this Court in Maru
B Ram etc. etc. v. Union of India & Another21 in following
words:-
" ....... In the first place, an order of remission does not
wipe out the offence it also does not wipe out the
conviction. All that it does is to have an effect on the
c execution of the sentence; though ordinarily a convicted
person would have to serve out the full sentence imposed
by a court, he need not do so with respect to that part of
the sentence which has been ordered to be remitted.
An order of remission thus does not in any way interfere
D with the order of the court; it affects only the execution of
the sentence passed by the court and frees the convicted
person from his liability to undergo the full term of
imprisonment inflicted by the court, though the order of
conviction and sentence passed by the court still stands
E as it was. The power of grant remission is executive
power and cannot have the effect of reducing the
sentence passed by the trial court and substituting in its
place the reduced sentence adjudged by the appellate
or revisional court ....... .
F
•••. . . .• Though, therefore, the effect of an order of
remission is to wipe out that part of the sentence of
imprisonment which has not been served out and thus in
practice to reduce the sentence to the period already ·
undergone, in law the order of remission merely means
G
that the rest of the sentence need not be undergone,
leaving the order of conviction by the court and the
sentence passed by it untouched."
21
(1981)1 SCC106
H
UNION OF INDIAv. V. SRIHARAN @MURUGAN 803
[UDAY UMESH LAUT, J.]
32. The difference between earned remissions "for good A
behaviour'' and the remission of sentence under Section 432
is clear. The first depends upon the Jail Manual or the Policy
in question and normally accrues and accumulates to the credit
of the prisoner without there being any specific order by the
appropriate Government in an individual case while the one B
under Section 432 requires specific assessment in an
individual matter and is case specific. Could such exercise
be undertaken under Section 432 by the appropriate
Government on its own, without there being any application
by or on behalf of the prisoner? This issue has already been C
dealt with in following cases by this Court.
A]. In Sangeet and another. v. State of Haryana 22, it
was observed in paras 59, 61 and 62 as under:-
"59. There does not seem to be any decision of this Court D
detailing the procedure to be followed for the exercise of
power under Section 432 CrPC. But it does appear to
us that sub-section (2) to sub-section (5) of Section 432
CrPC lay down the basic procedure, which is making an
application to the appropriate Government for the E
suspension or remission of a sentence, either by the
convict or someone on his behalf. In fact, this is what
was suggested in Samjuben Gordhanbhai Ko/iv. State
of Gujarat when it was observed that since remission
can only be granted by the executive authorities, the F
appellant therein would be free to seek redress from the
appropriate Government by making a representation in
terms of Section 432 CrPC.
61. It appears to us that an exercise of power by the
appropriate Government under sub-section (1) of Section G
432 Cr.P.C. cannot be suo motu forthe simple reason
that this sub-section is only an enabling provision. The
appropriate Government is enabled to "override" a
22
(2013)2 SCC452
H
804 SUPREME COURT REPORTS [2015] 14S.C.R.
A judicially pronounced sentence, subject to the fulfilment
of certain conditions. Those conditions are found either
in the Jail Manual or in statutory rules. Sub-section (1) of
Section 432 Cr.P.C. cannot be read to enable the
appropriate Government to "further override" the judicial
B pronouncement over and above what is permitted by the
Jail Manual or the statutory rules. The process of granting
"additional" remission under this section is set into motion
in a case only through an application for remission by
the convict or on his behalf. On such an application being
c made, the appropriate Government is required to
approach the Presiding Judge of the court before or by
which the conviction was made or confirmed to opine
(with reasons) whether the application should be granted
or refused. Thereafter, the appropriate Government may
o take a decision on the remission application and pass
orders granting remission subject to some conditions,
or refusing remission. Apart from anything else, this
statutory procedure seems quite reasonable inasmuch
as there is an application of mind to the issue of grant of
E remission. It also eliminates "discretionary" or en masse
release of convicts on "festive" occasions since each
release requires a case-by-case basis scrutiny.
62. It must be remembered in this context that it was held
in State of Haryana v. Mohinder Singh that the power of
F remission cannot be exercised arbitrarily. The decision
to grant remission has to be well informed, reasonable
and fair to all concerned. The statutory procedure laid
down in Section 432 Cr.P.C does provide this check on
the possible misuse of power by the appropriate
G Government."
BJ In Mohinder Singh v. State of Punjab 23 the
observations in para 27 were to the following effect:
"(2013)3 sec 294
H
UNION OF INDIAv. V. SRIHARAN @MURUGAN 805
[UDAY UMESH LAUT, J.)
"27. In order to check all arbitrary remissions, the Code A
itself provides several conditions. Sub-sections (2) to (5)
of Section 432 of the Code lay down basic procedure
for making an application to the appropriate Government
for suspension or remission of sentence either by the
convict or someone on his behalf. We are of the view B
that exercise of power by the appropriate Government
under sub-section ( 1) of Section 432 of the Code cannot
be suo motu for the simple reason that this is only an
enabling provision and the same would be possible
subject to fulfilment of certain coftditions. Those C
conditions are mentioned either in the Jail Manual or in
statutory rules. This Court in various decisions has held
that the power of remission cannot be exercised
arbitrarily. In other words, the decision to grant remission
has to be well informed, reasonable and fair to all o
concerned. The statutory procedure laid down in Section
432 of the Code itself provides this check on the possible
misuse of power by the appropriate Government. As
rightly observed by this Court in Sangeet v. State of
Haryana, there is a misconception that a prisoner E .
serving life sentence has an indefeasible right to release
on completion of either 14 years' or 20 years'
imprisonment. A convict undergoing life imprisonment is
expected to remain in custody till the end of his life, subject
· to any remission granted by the appropriate Government F
under Section 432 of the Code which in turn is subject to
the procedural checks mentioned in the said provision
and further substantive check in Section 433-A of the
Code."
CJ In Yakub Abdul Razak Memon v. State of G
Maharashtra through CBI, Bombay 24 , it was observed in
paras 921 and 922 as under:
"(2013) 13SCC 1
H
806 SUPREME COURT REPORTS [2015) 14S.C.R.
A "921. In order to check all arbitrary remissions, the Code
itself provides several conditions. Sub-sections (2) to (5)
of Section 432 of the Code lay down basic procedure
for making an application to the appropriate Government
for suspension or remission of sentence either by the
B convict or someone on his behalf. We are of the view
that exercise of power by the appropriate Government
under sub-section ( 1) of Section 432 of the Code cannot
be automatic or claimed as a right for the simple reason,
that this is only an enabling provision and the same would
c be possibl{subject to fulfilment of certain conditions.
Those conditions are mentioned either in the Jail Manual
or in statutory rules. This Court, in various decisions, has
held that the power of remission cannot be exercised
arbitrarily. In other words, the decision to grant remission
D has to be well informed, reasonable and fair to all
concerned. The statutory procedure laid down in Section
432 of the Code itself provides this check on the possible
misuse of power by the appropriate Government.
922. As rightly observed by this Court in Sangeet v. State
E of Haryana, there is misconception that a prisoner
serving life sentence has an indefeasible right to release
on completion of either 14 years or 20 years'
imprisonment. A convict undergoing life imprisonment is
expected to remain in custody till the end of his life, subject
F to any remission granted by the appropriate Government
under Section 432 of the Code, which in turn is subject
to the procedural checks mentioned in the said provision
and to further substantive check in Section 433-A of the
Code."
G 33. Relying on the aforesaid decisions of this Court, it
was submitted by the learned Solicitor General that there cannot
be suo motu exercise of power under Section 432 and that
even when the power is to be exercised on an application made
H
UNION OF INDIA v. V. SRIHARAN @MURUGAN 807
[UDAY UMESH LAUT, J.]
by or on behalf of the prisoner, opinion of the Presiding Judge A
of the Court before or by which the conviction was confirmed,
must be sought. In the submission of Mr. Rakesh Dwivedi,
learned Senior Advocate, power under Section 432( 1) can be
exercised suo motu and that Section 432(2) applies only when
an application is made and not where power is exercised suo B
motu.
34. We find force in the submission of the learned
Solicitor General. By exercise of power of remission, the
appropriate Government is enabled to wipe out that part of
the sentence which has not been served out and over-ride a C
judicially pronounced sentence. The decision to grant
remission must, therefore, be well informed, reasonable and
fair to all concerned. The procedure prescribed in Section
432(2) is designed to achieve this purpose. The .power
exercisable under Section 432(1) is an enabling provision and D
must be in accord with th~ procedure under Section 432(2).
Thus, our answer to question posed in para 52.6 is:·
Question 52.6. Whether suo motu exercise of poWer of
remission under Section 432(1) is permissible in the E
scheme of the section, if yes, whether IJ;ie procedure
prescribed in sub-section (2) of the same section is
mandatory or not?
Answer: That suo motu exercise of power of remission
under Section 432(1) is not permissible and exercise of power F
under Section 432(1) must be in accordance with the
procedure under Section 432(2) of Cr.P.C.
Re: Question No. 7 as stated in Para 52.7 of the
Referral Order: G
52.7. Whether the term "consultation" stipulated in
Section 435(1) of the Code implies "concurrence"?
35. Section 435(1) of Cr.P.C. sets out three categories
under clauses (a), (b) and (c) thereof and states inter alia that H
808 SUPREME COURT REPORTS [2015] 14 S.C.R.
A the powers conferred by Sections 432 and 433 of Cr.P.C.
upon the State Government shall not be exercised except after
consultation with the Central Government. The language used
in this provision and the expressions "... shall not be exercised"
and "except after consultation", signify the mandatory nature
B of the provision. Consultation with the Central Government
must, therefore, be mandatorily undertaken before the State
Government in its capacity as appropriate Government intends
to exercise powers under Sections 432 and 433. This is an
instance of express provision in a law made by Parliament as
c referred to in proviso to Article 73(1) of the Constitution. The
question is whether such consultation stipulated in Section
435(1) implies concurrence on part of the Central Government
as regards the action proposed by the State Government.
Relying on the decisions of this Court in L& T McNeil Ltd. v.
o Govt. of Tamil Nadu 25, State of U.P. & another v. Johri
MaP6, State of Uttar Pradesh and others v. Rakesh Kumar
Keshari and another7, Justice Chandrashekaraiah
(Retd.) v. Janekere C. Krishna and others 28 Mr. Rakesh
Dwivedi, learned Senior Advocate submitted that the term
E consultation as appearing in Section 435 ought not to be
equated with concurrence and that the action on part of the
State of Tamil Nadu in seeking views of the Central Government
as regards the proposed action did satisfy the requirement
under Section 435. On the other hand, the learned Solicitor
F General relied upon Supreme CourtAdvocates-on-Record
Association and others v. Union of lndia 2g and State of
Gujarat and another v. Justice R.A. Mehta(Retd.) and
others30 to submit that the consultation referred to in the
provision must mean concurrence on part of the Central
G "(2001)3SCC 170
26
(2004)4SCC714
21
(2011) 5 sec 341
28
(2013) 3sec111
29 (1993)4SCC441
H '°(2013) 3sec1
UNION OF INDIAv. V. SRI HARAN@ MURUGAN; 809
[UDAY UMESH LAUT, J.]
Government. In his submission without such concurrence, no Al\
action could be undertaken. "'
36. Speaking for the majority in Supreme Court
Advocates-on-Record Association (supra) J.S. Verma, J
(as the learned Chief Justice then was) considered the effect
of the phrase "consultation with the Chief Justice of India" 8 1
appearing in Article 222 of the Constitution . The observations
in paragraphs 438 to 441 are quoted hereunder:
"438. The debate on primacy is intended to determine
who amongst the constitutional functionaries involved in c
the integrated process of appointments is best equipped
to discharge the greater burden attached to the role of
primacy, of making the proper c;hoice; and this debate is
not to determine who between them is entitled to greater
importance or is to take the winner's prize at the end of DJ
the debate. The task before us has to be performed with
this perception.
439. The primacy of one constitutional functionary qua
the others, who together participate in the perforn'lance
of this function assumes significance only wh$9t6 they El
cannot reach an agreed conclusion. The ffi!tflfte is
academic when a decision is reached by'M'g~l'nent
taking into account the opinion of everyoneip~p"kting
together in the process, as primarily'ITfl@RB~&'.dThe
situation of a difference at the end, rais1JJ;Y1tl:iej{luestion F=i
of primacy, is best avoided by ea61tJae11tstituitib!i1ab1
functionary remembering that all of tlilemiar:e JDar\ii>i~arirtss
in a joint venture, the aim of whi¢!i)!isd(J);fil11diqillaaclise~o;tq
the most suitable .GarnildateJ ~rrappo~ehtl ia{!erw
assessing th~ c;,c;>,mPg~a,tjv~ [Tl!l~r"t9f9al/-!!io~e ~vailable. G)
This. exe'tdfge'.ln'J~.tJ>e"~~ofJ ~cl.lfs "k'.P.ld'y's 'd'utv to
.~'"'Hi"' :W SlS>GtHI llUUv "n · {lU() I 1Pffrlrn~···O ti.llJGU\. f9~1n:J .
isllc t~r~r~mi c:e;i18B~~"J JJtd~l1~m<~rt'.,A~~ .~1HrlllilJ??~ .v
co ec 1ve yon me nignes runC11onanes rawn1rom t e
to t~'Xeellt!Ve1 rl:ind''-tf.!~sjU\!l\cilafy.~<ffi/ VJbW31(ffTthetg'reat
noqsii~fnific:rat1ee,!Qfithl:ls~El3')5j)~lhlf.liWnts)vif>liiE!-1<tRfm'mon f+1
810 SUPREME COURT REPORTS [2015] 14 S.C.R.
A purpose to be achieved, points in the direction that
emphasis has to be on the importance of the purpose
and not on the comparative importance of the
participants working together to achieve the purpose.
Attention has to be focussed on the purpose, to enable
B better appreciation of the significance of the role of each
participant, with the consciousness that each of them has
some inherent limitation, and it is only collectively that
they constitute the selector.
440. The discharge of the assigned role by each
c functionary, viewed in the context of the obligation of each
to achieve the common constitutional purpose in the joint
venture will help to transcend the concept of primacy
between them. However, ifthere be any disagreement
_,
even then between them which cannot be ironed out by
D joint effort, the question of primacy would arise to avoid
stalemate.
441. For this reason, it must be seen who is best
equipped and likely to be more correct in his view for
achieving the purpose and performing the task
E
satisfactorily. In other words, primacy should be in him
who qualifies to be treated as the 'expert' in the field.
Comparatively greater weight to his opinion may then
be attached."
F The principle which emerges is that while construing the
term 'consultation' it must be seen who is the best equipped
and likely to be more correct in his view for achieving the
purpose and performing the tasks satisfactorily and greater
weight to his opinion may then be attached.
G While considering the phrase "after consultation of the
Chief Justice of the High Court", this Court in State of Gujarat
v. R.A. Mehta(supra) stated the principles thus:
"32. Thus, in view of the above, the meaning of
H "consultation" varies from case to case, depending upon
UNION OF INDIA v. V. SRIHARAN@ MURUGAN 811
[UDAY UMESH LAUT, J.]
its fact situation and the context of the statute as well as A
the object it seeks to achieve. Thus, no straitjacket
formula can be laid down in this regard. Ordinarily,
consultation means a free and fair discussion on a
particular subject, revealing all material that the parties -
possess in relation to each other and then arriving at a B
decision, However, in_ a situation where one of the
consultees has primacy of opinion under the statute,
either specifically contained in a statutory provision, or
by way of implication, consultation may mean
concurrence. The court must examine the fact situation c
in a given case to determine whether the process of
consultation as required under the particular situation did
in fact stand complete."
It is thus clear that the meaning of consultation varies
from case to case depending upon the fact situation and the D
context of the statute as well as the object it seeks to achieve.
37. In-the light of the aforesaid principles, we now consid~r
the objectthat sub-clauses (a), (b) and (c) of Section 435(1) of
the Cr.P.C. -seek to achieve. Clause (a) deals with cases E
which are investigated by the Delhi Special Police
Establishment i.e. the Central Bureau of Investigation or by
any other agency empowered to make investigation into an
offence under any Central Act.
The investigation by CBI in a matter may arise as a result F
of express consent or approval by the concerned State
Government under Sections 5 and 6 of the Delhi Special Police
Establishment Act or as a result of directions by a Superior •
Court in exercise of its writ jurisdiction in terms of the law laid
down by this Court in State ofWest Bengal and others v. G
Committee for Protection of Democratic Rights, West
Bengal and others31 • For instance, in the present case the
investigation into the crime in question i.e. Crime No. 3of1991
., (201O)3 sec 571
H
'812 SUPREME COURT REPORTS [2015] 14 S.C.R.
A was handed over to the CBI on the next day itself. The entire
investigation was done by the CBI who thereafter carried the
prosecution right up to this Court.
38. In a case where the investigation is thus handed over
B to the CBI, entire carriage of the proceedings including
.decisions as to who shall be the public prosecutor, how the
prosecution be conducted and whether appeal be filed or not
are all taken by the CBI and at no stage the concerned State
Government has any role to play. It has been laid down by this
Court in Lalu Prasad Yadav and anotherv. State of Bihar
C and another32 that in matters where investigation was handed
over to the CBI, it is the CBI alone which is competentto decide
whether appeal be filed or not and the State Government cannot
even challenge the order of acquittal on its own. In such cases
could the State Government then seek to exercise powers
D under Sections 432 and 433 on its own?
39. Further, in certain cases investigation is transferred
to the CBI under express orders of the Superior Court. There
are number of such examples and the cases could be of trans-
E border ramifications such as stamp papers scam or chit fund
scam where the offence may have been committed in more
than one States or it could be cases where the role and conduct
of the concerned State Government was such that in order to
have transparency in the entirety of the matter, the Superior
F Court deemed it proper to transfer the investigation to the CBI.
It would not then be appropriate to allow the same State
Government to exercise power under Sections :i32 and 433
on its own and in such matters, the opinion of the Central
•
Government must have a decisive status. In cases where the
. . • investigation was so .conducted by the CBI or any such Central
'G .Investigating Agency, the Central Government would be better
equipped and likely to be more correct in its view. Considering
the context of the provision, in our view. comparatively greater
· weight ought to be attached to the opinion of the Central
H-I 32
(201 ors sec 1
UNION OF INDIAv. V. SRIHARAN@MURUGAN 813
[UDAY UMESH LAUT, J.]
Government which through CBI or other Central Investigating A
Agency was in~charge of the investigation and had complete
carriage of the proceedings.
AO. The other two clauses, namely, clauses (b) and (c)
of Section 435 deal with offences pertaining to destruction of
any property belonging to the Central Government or where B
the offence was committed by a person in the service of the
Central Government while a_cting or purporting to act in the
discharge of his official duty. Here again, it would be the Central
Government Which would be better equipped and more correct
in taking the appropriate view which could achieve the purpose C
satisfactorily. In such cases, the question whether the prisoner
ought to be given the benefit under Section 432 or 433 must
be that of the Central Government. Merely because the State
Government happens to be the appropriate Government in - _
respect of such offences, if the prisoner were to be granted D
benefit under Section 432 or 433 by the State Governme:1t on
its own, it would in fact defeat the very purpose.
Our Answer to Question post in Para 52.7 is:-
Question 52.7. Whether the term "consultation" E
stipulated i_n Section 435(1) of the Code implies
"concurrence"? ·
Answer: In the premises as aforesaid, in our view the
expression "consultation" ought to be read as concurrence and
primacy must be accorded to the opinion of the Central F
Government in matters covered under clauses (a), (b) and (c)
of Section 435(1) of the Cr.P.C.
Re: Question No.2 as stated in para 52.2 of the
Referral Order G
52.2. Whether the "appropriate Govemmenf' is permitted
to exercise the power of remission under Sections 432/
433 .of the Code
. after the
. .parallel power has been
exercised by the President under Article 72 or the
814 SUPREME COURT REPORTS [2015) 14 S.C.R.
A Governor under Article 161 or by this Court in its
constitutional power under Article 32 as in this case?
41. As regards this question, the submissions of the
learned Solicitor General were two-fold. According to him the
Governor while exercising power under Article 161 of the
B Constitution, having declined remission in or commutation of
sentences awarded to the respondents-convicts, second or
subsequent exercise of executive power under Section 432/
433 by the State Government was not permissible and it would
amount to an over-ruling or nullification of the exercise of
C constitutional power vested in the Governor. In his submission,
the statutory power under Section 432/433 Cr.P.C. could not
be exercised in a manner that would be in conflict with the
decision taken by the constitutional functionary under Article
161 of the Constitution. It was his further submission that
D Sections 432 and 433 of Cr.P.C. only prescribe a procedure
for remission, while the source of substantive power of
remission is in the Constitution. According to him Sections
432 and 433, Cr.P.C. are purely procedural and in aid of
• constitutional power under Article 72 of 161. He further
E submitted that as laid down in Maru Ram (supra), while
exercising powers under Articles 72 and 161, the President
or the Governor act on the aid and advice of the Council of
Ministers and thus the Council of Ministers, that is to say the
exe_cutive having already considered the matter and rejected
F the petition, a subsequent exercise by the same executive is
impermissible. On the other hand, it was submitted by Mr.
Rakesh Dwivedi, learned Senior Advocate that there was
nothing in the statute which would bar or prohibit exercise of
power on the second or subsequent occasion and in fact
G Section 433A of Cr.P.C. itself gives an indication that such
exercise is permissible. It was further submitted that the power
conferred upon an authority can be exercised successively
from time to time as occasion requires.
H
UNION OF INDIA v. V. SRIHARAN @MURUGAN 815
[UDAY UMESH LAUT, J.]
42. We would first deal with the submission of the learned· A
Solicitor General that the provisions of Section 432/433 Cr.P.C.
are purely procedural and in aid of the constitutional power.
This Court had an occasion to deal with the issue, though in a
slightly different context, in Maru Ram (supra). We may quote
paragraphs 58 and 59 of the decision, which are as under: B
"58. ...........What is urged is that by the introduction of
Section 433-A, Section 432 is granted a permanent
holiday for certain classes of lifers and Section 433(a)
suffers eclipse. Since Sections 432 and 433(a) are a
statutory expression and modus operandi of the C
constitutional power, Section 433-A is ineffective
because it detracts from the operation of Sections 432
and 433(a) which are the legislative surrogates, as it
were, of the pardon power under the Constitution. We
are unconvinced by the submissions of counsel in this D
behalf.
59. It is apparent that superficially viewed, the two powers,
one constitutional and the other slaMory, are coextensive.
But two things may be similar but not the same. That is E
precisely the difference. We cannot agree that the power
which is the creature of the Code can be equated with a
high prerogative vested by the Constitution in the highest
functionaries of the Union and the States. The ·source is
qifferent, the substance is different, the strength is F
different, although the stream may be flowing along the
same bed. We see the two powers as far from being· ·
identical, and, obviously, the constitutional power is
"untouchable" and "unapproachable" and cannot suffer
the vicissitudes of simple legislative processes. G
Therefore, Section 433-A cannot be invalidated as
indirectty violative of Articles 72 and 161. Whatthe Code
gives, it can take, and so, an embargo on Sections 432
and 433(a) is within the legislative power of Parliament."
H
816 SUPREME COURT REPORTS [2015] 14 S.C.R.
A 43. The submission that Sections 432 and 433 are a
statutory expression and modus operandi of the constitutional
power was not accepted in Maru Ram (supra). In fact this
Court went on to observe that though these two powers, one
constitutional and the other statutory, are co-extensive, the
B source is different, the substance is different and the strength
is different. This Court saw the two powers as far from being
identical. The conclusion in para 72(4) in Maru Ram (supra)
was as under:
"72. (4) We hold that Section 432 and Section 433 are
c not a manifestation of Articles 72 and 161 of the
Constitution but a separate, though similar power, and
Section 433-A, by nullifying wholly or partially these prior
provisions does not violate or detract from the full
operation of the constitutional power to pardon, commute
D and the like.•
It is thus well settled that though similar, the powers under
Section 432/433 Cr.P.C. on one hand and those under Article
72 and 161 on the other, are distinct and different. Though
E they flow along the same bed and in same direction, the source
and substance is different. We therefore reject the submission
of the learned Solicitor General.
44. Section 433A of Cr.P.C. inter alia states," ...... where
a sentence of death imposed on a person has been commuted
F under Section 433 into one of imprisonment for life", such
person shall not be released from prison unless he had served
at least 14 years of imprisonment. It thus contemplates an
earlier exercise of power of commuting the sentence under
Section 433 Cr.P.C. It may be relevant to note that under
G Section 433 a sentence of death can be commuted for any
other punishment including i~prisonment for life. A prisoner
having thus been granted a benefit under Section 433 Cr.P.C.
can certainly be granted further benefit of remitting the
remainder part of the life sentence, subject of course to
H statutory minimum period of 14 years of actual imprisonment.
UNION OF INDIAv. V. SRIHARAN@MURUGAN 817
[UDAY UMESH LALIT, J.]
We therefore accept the submission of Mr. Rakesh Dwivedi, A
learned Senior Advocate that there is nothing in the statute
which either expressly or impliedly bars second or subsequent
exercise of power. In fact Section 433Acontemplates such
subsequent exercise of power. At this stage, the observations
in G Krishta Goud and J. Bhoomaiah v. State of Andhra B
Pradesh and others33 in the context of constitutional power
of clemency are relevant:
"10 . ............... The rejection of one clemency petition
does not exhaust the power of the President or the
Governor." C
This principle was re-iterated in para 7 of the decision in
Krishnan and others v. State of Haryana and others 34 as
follows:-
"ln fact, Articles 72 and 161 of the Constitution provide D
for residuary sovereign power, thus, there could be nothing
to debar. the authorities concerned to exercise such
power even after rejection of one clemency petition and
even in the changed circumstances."
45. In State of Haryana and others v. Jagdish~t was E
observed by this Court as under:
"46. At the time of considering the case of premature
release of a life convict, the authorities may require to
consider his. case mainly taking into consideration F
whetherthe offence was an individual act of crime without
affecting the society at large; whether there was any
chance of future recurrence of committing a crime;
whether the convict had lost his potentiality in committing
the crime; whether there was any fruitful purpose of G
confining the convict any more; the ·socio-economic
condition of the convict's family and other similar
circumstances."
33 (1976) 1sec1s1
"(2013) 14 sec 24 H
"(201OJ4 sec 216
818 SUPREME COURT REPORTS [2015) 14 S.C.R..
A In Kehar Singh v. Union of India (supra) it was
observed, " ........ the power under Article 72 is of the widest
amplitude, can contemplate myriad kinds and categories of
cases with facts and situations varying from case to case, in ·
which the merits and reasons of States may be profoundly
B assisted by prevailing occasion and passing of time". Having
regard to its wide amplltude and the status of the functions to
be discharged thereunder, it was found unnecessary to spell
out any specific guidelines for exercise of such power. The
observations made in the context of power under Article 72
c will also be relevant as regards exercise under Section 432/
433 Cr.P.C.
In State (Govt. of NCT of Delhi) v. Prem Ram3" it was
observed thus: ·
D "14. The powers conferred upon the appropriate
Government under Section 433 have to be exercised
reasonably and rationally keeping in view the reasons
germane and relevant for the purpose of law, mitigating
circumstances and/or commiserative facts necessitating
the commutation and factors like interest of the society
E
and public interest."
46. We see no hindrance or prohibition in second or
subsequent exercise of power under Section 432/433 Cr.P.C.
As stated above, such exercise is in fact contemplated under
F Section 433A. An exercise of such power may be required
and called for depending upon exigencies and fact situation.
A person may be on the death bed and as such the appropriate
Government may deem fit to grant remission so that he may
breathe his last in the comfort and company of his relations.
G Situations could be different. It would be difficult to put the
matter in any straight jacket or make it subject to any guidelines,
as was found in Kehar Singh. The aspects whether "the
convict had lost his potentiality in committing the crime and
whether there was any fruitful purpose of confining the convict
H ,. (2003) 1sec121
UNION OF INDIA v. V. SRIHARAN @MURUGAN 819
[UDAY UMESH LAUT, J.]
any more" as stated in State ofHaryana v. Jagdish (supra) A
could possibly yield different assessment after certain period
and can never be static. Every case will depend on its individual
facts and circumstances. In any case, if the repeated exercise
is not for any genuine or bona fide reasons, the matter can be
corrected by way of judieial review. Further, in the light of our B
decision as aforesaid, in any case an approach would be
required to be made under Section 432(2) Cr.P.C. to the
concerned court which would also result in having an adequate
check.
47. lntheinstantcase,A-1 NaliniandotherconvictsA-2, C
A-3 and A-18 who were awarded death sentence had initially
preferred mercy petition under Article 161 of the Constitution.
The petition preferred by A-1 Nalini was allowed, while those
of other three were rejected. Those three convicts then
preferred mercy petition under Article 72 of the Constitution D
which was rejected after considerable delay. On account of
such delay in disposal of the matters, this Court commuted
the sentence of those three convicts to that of life imprisonment.
The other convicts namely A-9, A-10 and A-16 had not preferred
any petition under Article 161 against their life imprisonment. E
Thus the. Governor while exercising power under Article 161
on the earlier occasion had considered the cases of only three
of the convicts and that too when they were facing death
sentence. The cases of other three were not even before the
Governor. In the changed scenario namely the death sentence F
having been commuted to that of the imprisonment for life under
the orders of this Court, the approach would not be on the same
set of circumstances. Each of the convicts having undergone
about 23 years of ~ctual imprisonment, there is defi!litely
change in circumstances. An earlier exercise of power under G
Article 72 or 161 may certainly have taken into account the
gravity of the offence, the effect of such offence on the society
in general and the victims in particular, the age, capacity and
conduct of the offenders and the possibility of any retribution.
Such assessment would naturally have been as on the day it H
820 SUPREME COURT REPORTS [2015] 14 S.C.R.
A was made. It is possible that with the passage of time the very
same assessment could be of a different nature. It will therefore
be incorrect and unjust to rule out even an assessment on the
subsequent occasion.
48. While commuting the death sentence to that of
8 imprisonment for life, on account of delay in disposal of the
mercy petition, this Court in its jurisdiction under Article 32
concentrates purely on the factum of delay in disposal of such
mercy petition as laid down by this Court in Shatrughan
Chauhan and anotherv. Union of India and others37• The
C merits of the matter are not required and cannot be gone into.
The commutation by this Court in exercise of power under
Article 32 is therefore completely of a different nature. On the
other hand, the consideration under Section 432/433 is of a
different dimension altogether.
D
Our Answer to Question posed in Para 52.2 is :-
Question 52.2. Whether the "appropriate Government"
is permitted to exercise the power of remission under
Sections 432/433 of the Code after the parallel power
E has been exercised by the President under Article 72 or
the Governor under Article 161 or by this Court in its
constitutional power under Article 32 as in this case?
Answer: In the circumstances, in our view it is
permissible to the appropriate Government to exercise the
F power of remission under Section 432/433 Cr.P.C. even after
the exercise of power by the President under Article 72 or the
Governor under Article 161 or by this Court in its constitutional
power under Article 32.
G Re: Question No.1 as stated in para 52.1 of the
Referral Order
49. Question no. 1 as formulated in the Referral Order
comprises of two sub-questions, as set out hereunder. ."
H "(2014) 3 sec 1
' ,,
. l .....
UNION OF INDIAv. V. SRIHARAN @MURUGAN 821
[UDAY UM ESH LAUT, J.]
(a) Whether imprisonment for life in terms of Section 53 A
read with Section 45 of the Indian Penal Code meant
imprisonment for rest of the life of the prisoner or a convict
und~rgoing life imprisonment has a right to claim
remission? And
(b) Whether as per the principles enunciated in 8
paragraphs 91 to 93 of Swamy Shraddananda(2) 6 , a
special category of sentence may be made for the very
few cases where the death penalty might be substituted
by the punishment for imprisonment for life or
imprisonment for a term in excess of fourteen years and C
to put that category beyond application of remission?
Re: Sub-question (al of question No.1 in Para 52.1
(a) Whether imprisonment for life in terms of Section 53
read with Section 45 of the Indian Penal Code meant D
imprisonment for rest of the life of the prisoner or a convict
undergoing life imprisonment has a right to claim
remission?
50. In Gopa/ Vinayak Godse v. The State of
Maharashtra and others 38, the petitioner was convicted on E
10.02.1949 and given sentences including one for
transportation for life. According to him, he had earned
remissions to the tune of 2893 days upto 30.09.1960 and if
such earned remissions were added, his actual term of
imprisonment would exceed 20 years and therefore he prayed F
that h_e be set at liberty forthwith. Repelling these submissions,
it was observed by the Constitution Bench of this Court that in
order to get the benefit of earned remissions the sentence of
imprisonment must be for a definite and ascertainable period,
from and out of which the earned remissions could be G
deducted. However, transportation for life or life imprisonment
meant that the prisoner was bound in law to serve the entire
life term i.e. the remainder of his life in prison. Viewed thus,
38
(1961)3SCR440
H
822 SUPREME COURT REPORTS (2015] 14 S.C.R.
A unless and until his sentence was commuted or remitted by an
appropriate authority under the relevant provisions, the
prisoner could not claim any benefit. It was observed:
" ........ As the sentence of transportation for life or its
prison equivalent, the life imprisonment, is one of indefinite
B duration, the remissions so earned do not in practice help such
a convict as it is not possible to predicate the time of his death.•
51. In Maru Ram (supra) while considering the effect of
Section 433A of Cr.P.C. this Court summed up the issue as
c under:
" ... Ordinarily, where a sentence is for a definite term, the
calculus of remissions may benefit the prisoner to instant-
release at that point where the subtraction results in zero.
Here, we are concerned with life imprisonment and so
D we come upon another concept bearing on the nature of
the sentence which has been highlighted in Godse's
case Where the sentence is indeterminate and of
uncertain duration, the result of subtraction from an
uncertain quantity is still an uncertain quantity and release
E of the prisoner cannot follow except on some fiction of
quantification of a sentence of uncertain duration. Godse
was sentenced to imprisonment for life. He had earned
considerable remissions which would have rendered him
eligible for release had life sentence been equated with
F 20 years of imprisonment a la Section 55 I. P. C. On the
basis of a rule which did make that equation, Godse
sought his release through a writ petition under
Article 52 of the Constitution. He was rebuffed by this
Court. A Constitution Bench, speaking through Subba
G Rao, J., took the view that a sentence of imprisonment
for life was nothing less and nothing else. than an
imprisonment which lasted till the last breath. Since death
was uncertain, deduction by way of remission did not
yield any tangible date for release and so the prayer of
H
UNION OF INDIA v. V. SRI HARAN @MURUGAN 823 ··
[UDAY UMESH LAUT, J.]
Godse was refused. The nature of a life sentence is A
incarceration until death, judicial sentence of
imprisonment for life cannot be in jeopardy merely
because of long accumulation of remissions. Release
would follow only upon an order under Section 401. of the
Criminal Procedure Code, 1898 (corresponding to B
Section 432 of the 1973 Code) by the appropriate
Government or on a clemency order .in exercise of power
under Article 72or161 of the Constitution. Godse (supra) .
is authority for the proposition that a sentence of
imprisonment for life is one of "imprisonment for the whole C
ofthe remaining period of the convicted person's natural
life"
Conclusion No. 6 in Maru Ram was to the following effect:
"We follow Godse's case (supra) to hold that 0
imprisonment for life lasts until the last breath, and
whatever the length of remissions earned, the prisoner
can claim release only if the remaining sentence is
remitted by Government."
52. Section 53 of the IPC envisages different kinds of E
punishments while Section 45 of the IPC defines the word 'life'
as the life of a human being unless the contrary appears from
the context. The life of a human being is till he is alive that is to
say till his last breath, which by very nature is one of indefinite
duration. In the light of the law laid down in Godse and Maru F
Ram, which law has consistently been followed the sentence
of life imprisonment as contemplated under Section 53 read
with Section 45 of the IPC means imprisonment for rest of the
life or the remainder of life of the convict. The terminal point of
'
the sentence is the last breath of the convict and unless the G
appropriate Government commutes the punishment or remits
the sentence such terminal point would not change at all. The
life imprisonment thus means imprisonment for rest of the life
of the prisoner.
H
824 SUPREME COURT REPORTS [2015] 14 S.C.R.
A 53. In paras 27 and 38 of the decision in State of
Haryana v. Mahender Singh and others39 , this Court
observed:-
"27. It is true that no convict has a fundamental right of
remission or shortening of sentences. It is also true that
B the State in exercise of its executive power of remission
must consider each individual case keeping in view the
relevant factors. The power of the State to issue general
instructions, so that no discrimination is made, is also
permissible in law.
c
38. A right to be considered for remission, keeping in
view the constitutional safeguards of a convict under
Articles 20 and 21 of the Constitution of India, must be
held to be a legal one. Such a legal right emanates from
not only the Prisons Act but also from the Rules framed
D
thereunder. Although no convict can be said to have any
constitutional right for obtaining remission in his
sentence, he in view of the policy decision itself must be
held to have a right to be considered therefor. Whether
by reason of a statutory rule or otherwise if a policy
E
decision has been laid down, the persons who come
within the purview thereof are entitled to be treated
equally. (State of Mysore v. H. Srinivasmurthy)"
54. The convict undergoing the life imprisonment can
F always apply to the concerned authority for obtaining remission
either under Articles 72 or 161 of the Constitution or under
Section 432 Cr.P.C. and the authority would be obliged to
consider the same reasonably. This was settled in the case of
Godse which view has since then been followed consistently
G in State of Haryana v. Mahender Singh (supra), State of
Haryana. Vs. Jagdish (supra), Sangeet Vs. State of
' Haryana (supra) and Laxman Naskar Vs. Union of India
:,:'I and others40 . The right to apply and invoke .the powers under
39
2007(13) sec 606
H •0 (2000) 2 sec 595
UNION OF INDIA v. V. SRI HARAN @MU RU GAN 825
[UDAY UMESH LAUT, J.]
these provisions does not mean that he can claim such benefit A
as a matter of right based on any arithmetical calculation as
ruled in Godse. All that he can claim is a right that his case be
considered. The decision whether remissions be granted or
not is entirely left to the discretion of the concerned authorities,
which discretion ought to be exercised in a manner known to B
law. The convict only has right to apply to competent authority
and have his case considered in a fair and reasonable manner.
Our Answer to sub question (a) of Question in Para
52.1 is:
c
(a) Whether imprisonment for life in terms of Section 53
read with Section 45 of the Indian Penal Code meant
imprisonment for rest of the life of the prisoner or a convict
undergoing life imprisonment has a right to claim
remission? D
Answer: The sentence of life imprisonment means
imprisonment for the rest of life or the remainder of life of the
convict. Such convict can always apply for obtaining remission
either under Articles 72 of 161 of the Constitution or under
Section 432 Cr. P.C. and the authority would be obliged to E
consider the same reasonably.
Re: sub-question (b) of Question No.1 in Para 52.1
(b) Whether as per the principles enunciated in
paragraphs 91 to 93 of Swamy Shraddananda(2)6, a F
special category of sentence may be made for the very
few cases where the death penalty might be substituted
by the punishment for imprisonment for life or
imprisonment for a term in excess of fourteen years and
to put that category beyond application of remission? G
55. In Swamy Shraddananda(1)4 the appellant was
convided for the offence of murder and given death sentence,
which conviction arid sentence was under appeal in this Court.
A Bench of two learned Judges of this Court affirmed the
H
826 SUPREME COURT REPORTS [2015] 14 S.C.R.
A conviction of the appellant but differed on the question of
sentence to be imposed. Sinha J. was of the view that instead
· of death sentence, life imprisonment would serve the ends of
justice. He however, directed that the appellant would not be
released from the prison till the end of his life. Katju J. was of
B the view that the appellant deserved death sentence. The
matter therefore came up before a Bench of three learned
Judges. While dealing with the question of sentence to be
imposed, this Court was hesitant in endorsing the death penalty
awarded by the trial court and confirmed by the High Court.
C Paragraph nos. 55 and 56 of the judgment in Swamy
Shraddananda(2) 6 may be quoted here:
"55. We must not be understood to mean that the crime
committed by the appellant was not very grave or the
motive behind the crime was not highly depraved.
D Nevertheless, in view of the above discussion we feel
hesitant in endorsing the death penalty awarded to him
by the trial court and confirmed by the High Court. The
absolute irrevocability of the death penalty renders it
completely incompatible to the slightest hesitation on the
E part of the Court. The hangman's noose is thus taken off
the appellant's neck.
56. But this leads to a more important question about
the punishment commensurate to the appellant's crime.
The sentence of imprisonment for a term of 14 years,
F
that goes under the euphemism of life imprisonment is
equally, if not more, unacceptable. As a matter of fact,
' Mr Hegde informed us that the appellant was taken in
custody on 28-3-1994 and submitted that by virtue of the
provisions relating to remission, the sentence of life
G
imprisonment, without any qualification or further direction
would, in all likelihood, lead to his release from jail in the
first quarter of 2009 since he has already completed
more than 14 years of incarceration. This eventuality is
simply not acceptable to this Court. What then is the
UNION OF INDIA v. V. SRIHARAN @ MURUGAN · 827
[UDAY UMESH LALIT, J.]
answer? The answer lies in breaking this standardisation A .
that, in practice, renders the sentence of life imprisonment
equal to imprisonment for<a period of no more than 14
years; in making it clear that the sentence of life
imprisonment when awarded as a substitute for death
penalty would be carried out strictly as directed by the B
Court. This Court, therefore, must lay down a good and
sound legal basis for putting the punishment of
imprisonment for life, awarded as substitute for death
penalty, beyond any remission and to be carried out as
directed by the Court so that it may be followed, in c
appropriate cases as a uniform policy not only by this
Court but also by the High Courts, being the superior
courts in their respective States. A suggestion to this
effect was made by this Court nearly thirty years ago in
Dalbir Singh v. Staff! of Punjab. In para 14 of the judgment o
this Court held and observed as follows: (SCC p. 753)
"14. The sentences of death in the present appeal are
liable to be reduced to life imprisonment. We may add a
footnote to the ruling in Rajendra Prasad case. iaking
the cue from the English legislation on abolition, we may E
suggest that life imprisonment which strictly means
imprisonment for the whole of the men's life but in practice
amounts to incarceration for a period between 10 and.
14 years may, at the option of the convicting court, be
subject to the condition that the sentence of F
imprisonment shall last as long as life lasts, where there
are exceptional indications of murderous recidivism
and the community cannot run the risk of the convict
being at large. This takes care of judicial apprehensions
that unless physically liquidated the culprit may at som'e 'G
remote time repeat murder.
We think that it is time that the course suggested in Dalbir
Singh should receive a formal recognition by the. Court."
H
828 SUPREME COURT REPORTS [2015) 14S.C.R.
A 56. The discussion in aforesaid paragraph 56 shows the
concern that weighed with this Court was the standardization
rendering the sentence of life imprisonment in practice as equal
to imprisonment for a period of no more than fourteen years.
Relying on Dalbir Singh & others v. State of Punjab41 which
B in turn had considered Rajendra Prasadv. State ofU.P. 42, it
was observed that the Court must in appropriate cases put
the punishment of life imprisonment awarded as a substitute
for death penalty, beyond any remission and direct it to be
carried out as directed by the Court. Paragraphs 91 to 93 of
c the decision in Shraddananda(2) which gives rise to sub-
question (b) of the first question in the Referral Order were as
under:
"91. The legal position as enunciated in Pandit Kishori
Lal, Gopal Vinayak Godse, Maru Ram, Ratan Singh
D and Shri Bhagwan and the unsound way in which
remission is actually allowed in cases of life
imprisonment make out a very strong case to make a
special category for the very few cases where the death
penalty might be substituted by the punishment of
E imprisonment for life or imprisonment for a term in excess
of fourteen years and to put that category beyond the
application of remission.
92. The matter may be looked at from a slightly different
angle. The issue of sentencing has two aspects. A
F
sentence may be excessive and unduly harsh or it may
be highly disproportionately inadequate. When an
appellant comes to this Court carrying fl death sentence
awarded by the trial court and confirmed by the High
Court, this Court may find, as in the present appeal, that
.G the case just falls short of the rarest of the rare category
and may feel somewhat reluctant in endorsing the death
sentence. But at the same time, having regard to the
nature of the crime, the Court may strongly feel that a
sec
., (1979) 3 745
42
H (1979)3SCC646
UNION OF INDIA v. V. SRI HARAN@ MURUGAN 829
[UDAY UMESH LAUT, J.]
sentence of life imprisonment subject to remission A
normally works out to a term of 14 years would be grossly ·
disproportionate and inadequate. What then should the
Court do? If the Court's option is limited only to two
punishments, one a sentence of imprisonment, for all
intents and purposes, of not more than 14 years and the B
other death, the Court may feel tempted and find itself
nudged into endorsing the death penalty. Such a course
would indeed be disastrous. A far more just, reasonable -
and proper course would be to expand the options and
to take over what, as a matter of fact, lawfully belongs to C
the Court i.e. the vast hiatus _between 14 years'
imprisonment and death. It needs to be emphasised that
the Court would take recourse to the expanded option
primarily because in the facts of the case, the sentence
of 14 years' imprisonment would amount to no D
punishment at all.
· 93. Further, the formalisation.of a special category of
sentence, though for an extremely few number of cases,
shall have the great advantage of having the deatn penalty
on the statute book but to actually use it as little as . E
possible, really in the rarest of rare cases. This would
only be a reassertion of the Constitution Bench decision
in Bachan Sing/1 besides being in accon;I with the
modem trends in penology."
F
57. Finally, in paragraph 95 of its Judgment in
5hraddananda(2)6 this Court substituted the death sentence
given to the appellant to that of imprisonment for life and
direct11d that he would not be released from the prison till the
re.st of his life. While doing so, this Court made it clear that it G
was not dealing with powers of the President and the Governor
under Article 72 and 161 of the Constitution but only with
provisions of commutation, remission etc. as contained in the
Cr.P.C. and the Prison Acts, as would be evident from
paragraph 77 of the judgment Which was to the foHOWing effect:~ . H
830 SUPREME COURT REPORTS [2015] 14S.C.R.
A "77. This takes us to the issue of computation and
remission, etc. of sentences. The provisions in regard to
computation, remission, suspension, etc. are to be found
both in the Constitution and in the statutes. Articles 72
and 161 of the Constitution deal with the powers of the
B President and the Governors of the States respectively
to grant pardons, reprieves, respites or remissions of
punishment or to suspend, remit or commute the
sentence of any person convicted for any offence. Here
it needs to be made absolutely clear that this judgment
C is not concerned at all with the constitutional provisions
that are in the nature of the State's sovereign power. What
is said hereinafter relates only to provisions of
commutation, remission, etc. as contained in the Code
of Criminal Procedure and the Prisons Acts and the rules
p framed by the different States."
58. The decision in Shraddananda(2) 6 is premised on
the following:
(a) The life imprisonment, though in theory is till the rest
E of the life or the remainder of life of the prisoner, in practice it
·is equal to imprisonment for a period of no more than 14 years.
(b) Though in a given case, in the assessment of the Court
the case may fall short of the "rarest of rare" category to justify
award of death sentence, it may strongly feel that a sentence
F of life imprisonment which normally works out to a term of
fourteen years may be grossly disproportionate and
inadequate.
(c) If the options are limited only to these two punishments
the Court may feel tempted and find itself nudged into endorsing
G the death penalty, which course would be disastrous. ·
(d) The Court may therefore take recourse to the
expanded option namely the hiatus between imprisonment for
fourteen years and the death sentence, if the facts of the case ·
justify..
H ,
UNION OF INDIAv. V. SRIHARAN@MURUGAN 831
[UDAY UMESH LAUT, J.)
(e)The unsound way in which remissions are granted A
in cases of life imprisonment makes out a strong case to make
a special category for the very few cases where the death
penalty is substituted for imprisonment of life.
(f) While awarding life imprisonment the Court may
specify that the prisoner must actually undergo minimum B
sentence of period in excess of fourteen years or that he shall
not be released till the rest of his life and/or put such sentence
beyond the application of remission.
The view so taken in Shraddananda(2) 6 has been c
followed in some of the later Bench decisions of this Court. It
is the correctness of this view and more particularly whether it
is within the powers of the Court to put the sentence of life
imprisonment so awarded beyond application of remissions,
which is presently in question. D
59. We must at the outset state that while commuting the
death sentence to that of imprisonment for life, this Court in V.
Sreedharv. Union of India (supra)5 had not put any fetters or
restrictions on the power of commutation and/or remission. In
fact paragraph 32 of the decision expressly mentions that the E
sentence so awarded is subject to any remission granted by
the Appropriate Government under Section 432 of Cr.P.C.
Strictly speaking, sub-question (b) of.the first question does
not arise for consideration insofar as the present writ petition
is concerned and that precisely was the submission of Mr. F
Rakesh Dwivedi, learned Senior Advocate. However since
the question has been referred for our decision we proceed to
deal with said sub-question (b) of question No.1. Further a
doubt has been expressed in Sangeet v. State of Haryana
(supra) regarding correctness of the decision in G
Shraddananda(2} 6 in following words:
"55. A reading of some recent decisions delivered by
this Court seems to suggest that the remission power of
the appropriate Government has effectively been nullified
H
832 SUPREME COURT REPORTS (2015] 14S.C.R.
A by awarding sentences of 20 years, 25 years and in
some cases without any remission. Is this permissible?
Can this Court (or any court for that matter) restrain the
appropriate Government from granting remission of a
sentence to a convict? What this Court has done in
B Swamy Shraddananda and several other cases, by
giving a sentence in a capital offence of 20 years' or 30
years' imprisonment without remission, is to effectively
injunct the appropriate Government from exercising its
power of remission for the specified period. In our
c opinion, this issue needs further and greater discussion,
but as at present advised, we are of the opinion that this
is not permissible. The appropriate Government cannot
be told that it is prohibited from granting remission of a
sentence. Similarly, a convict cannot be told that he
o cannot apply for a remission in his sentence, whatever
be the reason."
We therefore deal with the question.
60. The decision of this Court in Maru Ram (Supra)
refers to the background which preceded the introduction of
E Section 433Ain Cr. P.C. The Joint Committee which went into
the Indian Penal Code (Amendment) Bill had suggested that
a long enough minimum sentence should be suffered by both
classes of lifers namely, those guilty of offence where death
sentence was one of the alternatives and where the death
F sentence was commuted to imprisonment for life. Paragraph
5 of the decision in Maru Ram sets out the objects and
reasons, relevant notes on clauses and the recommendations
and was to the following effect:
G "5. The Objects and Reasons throw light on the "why" of
this new provision:
"The Code of Criminal Procedure, 1973 came into force
on the 1st day of April, 1974. The working of the new
Code has been carefully watched and in the light of the
H
UNION OF INDIA v. V. SRI HARAN@ MURUGAN 833
[UDAY UMESH LAUT, J,]
experience, it has been found necessary to make a few A
changes for removing certain difficulties and doubts. The
notes on clauses explain in brief the reasons for the
amendments."
The notes on clauses give the further explanation:-
B
"Clause 33.-Section 432 contains provision relating to
powers of the appropriate Government to suspend or
remit sentences. The Joint Committee on the Indian Penal
Code (Amendment) Bill, 1972, had suggested the
insertion of a proviso to Section 57 of the Indian Penal c
Code to the effect that a person who has been sentenced
to death and whose death sentence has been commuted
into that of life imprisonment and persons who have been
sentenced to life imprisonment for a capital offence
should undergo actual imprisonment of 14 years in jail. D
Since this particular matter relates more appropriately
to the Criminal Procedure Code, a new section is being
inserted to cover the proviso inserted by the Joint
Committee."
This takes us to the Joint Committee's recommendation E
on Section 57 of the Penal Code that being the inspiration
for clause 33. For the sake of completeness, we may
quote that recommendation:
"Section 57 of the Code as proposed to be amended
had provided that in calculating fractions of terms of F
punishment, imprisonment for life should be reckoned ·
as equivalent to rigorous imprisonment for twenty years.
In this connection attention of the Committee was brought
to the aspect that sometimes due to grant of remission
even murderers sentenced or commuted to life G
imprisonment were released at tile end of 5 to 6 years.
The Committee feels that such a convict should not be
released unless he has served at least fourteen years of
imprisonment."
H
834 SUPREME COURT REPORTS [2015) 14 S.C.R.
A Thus, as against the then prevalent practice or experience
where murderers sentenced or commuted to life imprisonment,
were being released at the end of 5-6 years, period of 14 years
of actual imprisonment was considered sufficient.
61. Shraddananda(2) 6 referred to earlier decision of
B this Court in Dalbir Singh and others v. State of Punjab
(supra). In that decision, taking cue from English Legislation
on abolition of death penalty, a suggestion was made in
following words:-
c "14. The sentences of death in the present appeal are
liable to be reduced to life imprisonment. We may add a
footnote to the ruling in Rajendra Prasad case. Taking
the cue from the English legislation on abolition, we may
suggest that life imprisonment which strictly means
D imprisonment for the whole of the man's life, but in
practice amounts to incarceration for a period between
10 and 14 years may, at the option of the convicting court,
be subject to the condition that the sentence of
imprisonment shall last as long as life lasts where there
are exceptional indications of murderous recidivism and
E
the community cannot run the risk of the convict being at
large. This takes care of judicial apprehensions that
unless physically liquidated the culprit may at some
remote time repeat murder."
F 62. Committee of Reforms on Criminal Justice System
under the Chairmanship of Dr. Justice Malimath in its report
submitted in the year 2003 recommended suitable
amendments to introduce a punishment higher than life
imprisonment and lesser than death penalty, similar to that
G which exists in USA namely "Imprisonment for life without
commutation or remission". The relevant paragraphs of
Malimath Committee Report namely paragraphs 14. 7.1 and
14.7.2were as under:-
H
UNION OF INDIA v. V. SRIHARAN@ MURUGAN 835
[UDAY UMESH LAUT, J.]
"ALTERNATIVE TO DEATH PENALTY A
14.7.1Section53 of the IPC enumerates various kinds
of punishments that can be awarded to the offenders,
the highest being the death penalty and the seco'nd being
the sentence of imprisonment for life. At present there is
no sentence that can be awarded higher than B
imprisonment for life and lower than death penalty. In USA
a higher punishment called "Imprisonment for life without
commutation or remission" is one of the punishments.
As death penalty is harsh and irreversible the Supreme
Court has held that death penalty should be awarded only C
in the rarest of rare cases, the Committee considers that
it is d.esirable to prescribe a punishment higher than that
of imprisonment for life and lower than death penalty.
Section 53 be suitably amended to include "Imprisonment
for life without commutation or remission" as one. of the D
punishments.
14.7.2 Wherever imprisonment for life is one of the
· penalties prescribed under the IPC, the following
alternative punishment be added namely "Imprisonment E
for life without commutation or remission". Wherever
punishment of imprisonment for life without commutation
or remission is awarded, the State Governments cannot
commute or remit the sentence. Therefore, suitable
· amendment may be made to make it clear that the State
Governments cannot exercise power of remission or· F
commutation when sentence of "Imprisonment for life
without remission or commutation" is awarded. This
however cannot affect the Power of Pardon etc of the
President and the Governor under Articles 72 and 161
respectively." G
63. In its report submitted in January 2013, Committee
on Amendment to Criminal Law under the chairmanship of
Justice J .S. Verma made following recommendations on life
imprisonment:- H
836 SUPREME COURT REPORTS [2015] 14 S.C.R.
A "On Life Imprisonment
13. Before making our recommendation on this subject,
we would like to briefly examine the meaning of the
expression "life" in the term "life imprisonment", which
has attracted considerable judicial attention.
B
14. Mohd. Munna v. Union of India reported in 2005
(7,) sec 417 reiterates the well settled judicial opinion
that a sentence of imprisonment for life must, prima facie,
be treated as imprisonment for the whole of the remaining
c period of the convict's natural life. This opinion was
recently restated in Rameshbhai Chandubhai
Rathode v. State of Gujarat reported in 2011 (2) SCC
764, and State of U.P. v. Sanjay Kumar reported in
2012(8) SCC 537, where the Supreme Court affirmed
that life imprisonment cannot be equivalent to
D
imprisonment for 14 or 20 years, and that it actually
means (and has always meant) imprisonment for the
whole natural life of the convict.
15. We therefore recommend a legislative clarification
E that life imprisonment must always mean imprisonment
"for 'the entire natural life of the convict'."
Pursuant to these recommendations, certain Sections
were added in the IPC while other Sections were substantially
amended by Criminal Law Amendment Act of 2013 (Act 13 of
F 2013). As a result Sections 370(6), 376-A, 376-D and 376-E
now prescribe a punishment of ''with imprisonment for life which
shall mean imprisonment for the remainder of that persons
natural life". Thus what was implicit in the sentence for
imprisonment of life as laid down in Godse and followed since
G then has now been made explicit by the Parliament in certain
Sections of the IPC. However, none of the amendments
reflected the introduction of punishment suggested by Malimath
Committee.
H
UNION OF INDIA v. V. SRI HARAN@ MURUGAN 837
[UDAY UMESH LAUT, J.]
64. Thus despite recommendations of Justice Malimath A
Committee to introduce a punishment higher than life
imprisonment and lesser than death penalty similar to the one
which exists in USA, Parliament has chosen not to act in terms
of recommendations for last 12 years. In this backdrop, it was
submitted by Mr. Rakesh Dwivedi, learned Senior Advocate B
that in Shraddananda(2) 6 this court in fact carved out and
created a new form of punishment and resorted to making a
legislation on the point. It was further submitted that Section
433A of Cr.P.C. prescribes minimum actual imprisonment
which must be undergone in cases of life imprisonment on C
two counts, where death sentence is one of the alternatives or
where death sentence is commuted to imprisonment for life.
Even the prisoner who at one point of time was awarded a
death sentence is entitled, upon his death sentence being
commuted to life imprisonment, to be considered under Section D
433A. In his submission, it would not be within the powers of
the court to put the sentence of life imprisonment in such cases
beyond application of remissions, in the teeth of the Statute.
Mr. T.R. Andhyarujina, learned Senior Advocate appearing for
one of the intervenors submitted that what is within the domain E
of the judiciary is power to grant or award sentence as
prescribed and when it comes to its execution the domain is
that of the executive. In his submission howsoever strong be
the temptation on account of gravity of the crime, there could
be no trenching into the power of the executive. He submitted F
that it is not for the judiciary to say that there could be no
commutation at all, which would be violative of the concept of
separation of powers. Reliance was placed on Section 32A
of NDPS Act to contend that wherever the Parliament intended
that there be no remissions in respect of any offence, it has G
chosen to say so in specific terms.
65. In a recent decision of this Court in Vikram Singh@
Vicky & another v. Union of India and others43, while
43 AIR 2015 SC 3577
H
838 SUPREME COURT REPORTS [2015] 14 S.C.R.
A considering challenge to the award of death sentence for an
offence under Section 364A of the IPC this Court considered
various decisions on the issue of punishment. It considered
some American decisions holding that fixing of prison terms
for specific crimes involves a substantive penalogical judgment
B which is properly within the province of legislatures and not
courts and that the responsibility for making fundamental
choices and implementing them lies with the legislature. In
the end, the conclusions (b), (c)and (d)as summed up by this
Court were as under:
c "(b) Prescribing punishment is the function of the
legislature and not the Courts.
(c) The legislature is presumed to be supremely wise
and aware of the needs of the people and the measures
D that the necessary to meet those needs.
(d) Court show deference to the legislative will and
wisdom and are slow in upsetting the enacted provisions
dealing with the quantum of punishment prescribed for
different offences. n
E 66. Section 302 IPC prescribes two punishments, the
maxima being the death sentence and the minima to be life
sentence. Shraddananada(2) 6 proceeds on the footing that
the court may in certain cases take recourse to the expanded
option namely the hiatus between imprisonment for 14 years
F and the death sentence, if the facts of the case so justify. The
hiatus thus contemplated is between the minima i.e. 14 years
and the maxima being the death sentence. In fact going by the
punishment prescribed in the statute there is no such hiatus
between the life imprisonment and the death sentence. There
G is nothing that can stand in between these two punishments
as life imprisonment, going by the law laid down in Godse's
case is till the end of one's life. What Shraddananda(2)6 has
done is to go by the practical experience of the life
imprisonment getting reduced to imprisonment for. a period of
H
UNION OF INDIA v. V: SRI HARAN@ MURUGAN 839
(UDAY UMESH LAUT, J.]
not more that 14 years and assess that level to be the minima A
and then consider a hiatus between that level and the death
sentence. In our view this assumption is not correct. What
happens on the practical front cannot be made basis for
creating a sentence by the Courts. That part belongs
specifically to the legislature. If the experience in practice B
shows that remissions are granted in unsound manner, the
matter can be corrected in exercise of judicial review. In any
case in the light of our discussion in answer to Question in
Para 52.6, in cases of remissions under Section 432/433 of
Cr.P.C. an approach will necessarily have to be made to the C
Court, _which will afford sufficient check and balance.
67. It may be relevantto note at this state that in England
and Wales, the mandatory life sentence for murder is contained
in Section 1(1) of the Murder (Abolition of the Death Penalty)
Act, 1965. The Criminal Justice Act, 2003 empowers a trial D
judge, in passing a mandatory life sentence, to determine the
minimum term which the prisoner must serve before he is
eligible for early release on licence. The statute allows the
trial judge to decide that because of the seriousness of the
offence, the prisoner should not be eligible for early release E
(in effect to make a "whole life order" that is to say till the end
of his life.
In effect, the recommendations of Malimath Committee
were on similar lines to add a new form of punishment which F
could similarly empower the Courts to impose such punishment
and state that the prisoner would not be entitled to remissions.
Section 32Aofthe NDPSAct is also an example in that behalf.
What is crucial to note is the specific empowerment under
the Statute by which a prisoner could be denied early release G
or remissions.
68. Shraddananda (2)6 does not proceed on the ground
that upon interpretation of the concerned provision such as
Section 302 of the IPC, such punishment is available for the
·H
840 SUPREME COURT REPORTS (2015] 14 S.C.R.
A court to impose. If that be so it would be available to even the
first court i.e. Sessions Court to impose such sentence and
put the matter beyond any remissions. In a given case the
matter would not go before the superior court and it is possible
that there may not be any further assessment by the superior
B court. If on the other hand one were to say that the power could
be traceable to the power of confirmation in a death sentence
which is available to the High Court under Chapter XXVlll of
Cr.P.C., even the High Court while considering death reference
could pass only such sentence as is available in law. Could
c the power then be traced to Article 142 of the Constitution?
69. In Prem Chand Garg and another v. Excise
Commissioner, U.P. and others", Constitution Bench of this
Court observed:-
" .... The powers of this Court are no doubt very wide and
D
they are intended to be and will always be exercised in
the interest of justice. But that is not to say that an order
can be made by this Court which is inconsistent with the
fundamental rights guaranteed by Part 111 of the
Constitution. An order which this Court can make in order
E
to do complete justice between the parties, must not only
be consistent with the fundamental rights guaranteed by
the Constitution, but it cannot even be inconsistent with
the substantive provisions of the relevant statutory
laws ...."(emphasis added)
F
In Supreme Court Bar Association v. Union of India
& another" while dealing with exercise of powers under Article
142 of Constitution, it was observed :-
"47. The plenary powers of this Court under Article 142
G of the Constitution are inherent in the Court and are
complementary to those powers which are specifically
conferred on the Court by various statutes though are
not limited by those statutes. These powers also exist
44 AIR 1963 SC 996
H "1998 (4) sec 409
UNION OF INDIA v. V. SRI HARAN @ MURUGAN 841
(UDAY UMESH LAUT, J.]
independent of the statutes with a view to do complete A
justice between the parties. These powers are of very
wide amplitude and are in the nature of supplementary
powers. This power exists as a separate and
independent basis of jurisdiction apart from the statutes.
It stands upon the foundation and the basis for its exercise B
may be put on a different and perhaps even wider footing,
to prevent injustice in the process of litigation and to do
complete justice between the parties. This plenary
jurisdiction is, thus, the residual source of power which
this Court may draw upon as necessary whenever it is C
just and equitable to do so and in particular to ensure
the observance of the due process of law, to do complete
justice between the parties, while administering justice
according· to law. There is no doubt that it is an
indispensable adjunct to all other powers and is free from D
the restraint of jurisdiction and operates as a valuable
weapon in the hands of the Court to prevent "clogging or
obstruction of the stream of justice". It, however, needs
to be remembered that the powers conferred on the
Court by Article 142 being curative in nature cannot be E
construed as powers which authorise the Court to ignore
the substantive rights of a litigant while dealing with a
cause pending before it. This power cannot be used to
"supplant" substantive law. applicable to the case or
cause under consideration of the Court.Article 142, even F
with the width of its amplitude, cannot be used to build a
new edifice where none existed earlier, by ignoring
express statutorv provisions dealing with a subject and
thereby to achieve something indirectly which cannot be
achieved directly. Punishing a contemner advocate, while G
dealing with a contempt.of court case by suspending his
licence to practice, a power otherwise statutorily available
only to the Bar Council of India, on the ground that the
contemner is also an advocate, is, therefore, not
permissible in exercise of the jurisdiction under Article H
842 SUPREME COURT REPORTS [2015] 14 S.C.R.
A 142. The construction of Article 142 must be functionally
informed by the salutary purposes of the article, viz., to
do complete justice between the parties. It cannot be
otherwise. As already noticed in a case of contempt of
court, the contemner and the court cannot be said to be
B litigating parties."(emphasis added)
70. Further, in theory it is possible to say that even in
cases where court were to find that the offence belonged to
the category of "rarest of rare" and deserved death penalty,
such death convicts can still be granted benefit under Section
C 432/433 ofCr.P.C. In fact, Section 433Acontemplates such a
situation. On the other hand, if the court were to find that the
case did not belong to the "rarest of rare" category and were
to put the matter beyond any remissions, the prisoner in the
latter category would stand being denied the benefit which even
D the prisoner of the level of a death convict could possibly be
granted under Section 432/433 of the Cr.P.C. The one who in
the opinion of the Court deserved death sentence-can thus
get the benefit but the one whose case fell short to meet the
criteria of "rarest of rare" and the Court was hesitant to grant
E death sentence, would languish in Jail for entirety of his life,
without any remission. If absolute 'irrevocability of death
sentence' weighs with the Court in not awarding death
sentence, can the life imprisonment ordered in the alternative
be so directed that the prospects of remissions on any count
F stand revoked for such prisoner. In our view, it cannot be so
ordered.
71. We completely share the concern as expressed in
Shraddananda(2)6 that at times remissions are granted in
G extremely unsound manner but in our view that by itself would
not and ought not to nudge a judge into endorsing a death
penalty. If the offence in question falls in the category of the
"rarest of rare" the consequence may be inevitable. But that
cannot be a justification to create a new form of punishment
putting the matter completely beyond remission. Parliament
H
UNION OF INDIA v. V. SRI HARAN@ MURUGAN 843
[UDAY UMESH LALIT, J.]
having stipulated mandatory minimum actual imprisonment at A
the level of 14 years, in law a prisoner would be entitled to
apply for remission under the statute. If his case is made out, i.t
is for the executive to consider and pass appropriate orders.
Such orders would inter alia consider not only the gravity of
the crime but also other circumstances including whether the B
prisoner has now been de-sensitized and is ready to be
assimilated in the society. It would not be proper to prohibit
such consideration by the executive. While doing so and
putting the matter beyond remissions, the court would in fact
be creating a new punishment. This would mean- though a C
model such a Section 32A was available before the Legislature
and despite recommendation by Malimath Committee, no such
punishment was brought on the Statute yet the Court would
create such punishment and enforce it in an individual case. In
our view, that would not be permissible. D
72. In Pravasi Bhalai Sangathan v. Union of India and
others 46 , while emphasizing that the court cannot rewrite,
recast or reframe the legislation it was observed as under:-
"20. Thus, it is evident that the legislature had already E
provided sufficient and effective remedy for prosecution
of the authors who indulge in such activities. In spite of
the above, the petitioner sought reliefs which tantamount
to legislation. This Court has persistently held that our
Constitution clearly provides for separation of powers F
and"the court merely applies the law that it gets from the
legislature. Consequently, the Anglo-Saxon legal tradition
has insisted that the Judges should only reflect the law
regardless of the anticipated consequences,
considerations.offairness or public policy and the Judge
is simply not authorised to legislate law. "If there is a law,· G
Judges can certainly enforce it, but Judges cannot create
a law and seek to enforce it." The court cannot rewrite,
recast or re frame the legislation for the very good reason
"2014(11Jsec477
H
844 SUPREME COURT REPORTS [2015] 14S.C.R.
A that it has no power to legislate. The very power to
legislate has not been conferred on the courts. However,
of lately, judicial activism of the superior courts in India
has raised public eyebrows time and again."
Similarly in Sushi/ Kumar Sharma v. Union of India
B and others4 7 , it was observed that if the provision of law is
misused and subjected to the abuse, it is for the legislation to
amend modify or repeal it, if.deemed necessary.
73. The power under Section 432/433 Cr.P.C. and the
c one exercisable under Articles 72 and 161 of the Constitution,
as laid down in Maru Ram (supra) are streams flowing in the
same bed. Both seek to achieve salutary purpose. As
observed in Kehar Singh (supra) in Clemency jurisdiction it
is permissible to examine whether the case deserves the grant
of relief and cut short the sentence in exercise of executive
0
power which abridges the enforcement of a judgment.
Clemency jurisdiction would normally be exercised in the
exigencies of the case and fact situation as obtaining when
the occasion to exercise the power arises. Any order putting
E the punishment beyond remission will prohibit exercise of
statutory power designed to achieve same purpose under
Section 432/433 Cr.P.C .. In our view Courts cannot and ought
not deny to a prisoner the benefitto be considered for remission
of sentence. By doing so, the prisoner would be condemned
F to live in the prison till the last breath without there being even
a ray of hope to come out. This stark reality will not be conducive
to reformation of the person and will in fact push him into a
dark hole without there being semblance of the light at the end
of the tunnel.
G 74.As stated in Prem Chand Garg (supra) an order in
exercise of power under Article 142 of the Constitution of India
must not only be consistent with the fundamental rights
guaranteed by the Constitution, but it canno~ even be
"(2005) 6 sec 2s1
H
UNION OF INDIA v. V. SRI HARAN @ MURUGAN 845
[UDAY UMESH LAUT, J.]
inconsistent with the substantive provisions of the relevant A
statutory laws. In A.R. Antulay v. R.S. Naik48 a direction by
which the petitioner was denied a statutory right of appeal was
recalled. A fortiorari, a statutory right of approaching the
authority under Section 432/433 Cr.P.C. which authority can,
as laid down in Kehar Singh (supra) and Epuru Sudhakar B
(supra) eliminate the effect of conviction, cannot be denied
under the orders of the Court.
75. The law on the point of life imprisonment as laid down
in Godse's case (supra) is clear that life imprisonmentmeans
till the end of one's life and that by very nature the sentence is C
indeterminable. Any fixed term sentence characterized as
minimum which must be undergone before any remission could
be considered, cannot affect the character of life imprisonment
but such direction goes and restricts the exercise of power of
remission before the expiry of such stipulated period. In D
essence, any such direction would increase or expand the
statutory period prescribed under Section 433Aof Cr.P.C. Any .
such stipulation of mandatory minimum period inconsistent
with the one in Section 433A, in our view, would not be within
the powers of the Court. E
Our answer to Sub Question (b) of Question in
Para 52.1 is:
Question b: Whether as per the principles enunciated
in paragraphs 91 to 93 of Swamy Shraddananda(2)6, F
a special category of sentence may be made for the very
few cases where the death penalty might be substituted
by the punishment for imprisonment for life or
imprisonment for a term in excess of fourteen years and
to put that category beyond application of remission? G
Answer. In our view, it would not be open to the Court to
make any special category of sentence in substitution of death
penalty and put that category beyond application of remission,
" (1988) 2 sec 502
H
846 SUPREME COURT REPORTS [2015) 14S.C.R.
A nor would it be permissible to stipulate any mandatory period
of actual imprisonment inconsistent with the one prescribed
under Section 433A of Cr. P.C.
76. Reference answered accordingly.
B W. P (CRL.l Nos.185, 150, 66 OF 2014 & Crl. Appeal
N0.1215 OF 2011
These Writ Petitions and Criminal Appeal are disposed
of in terms of the decision in Writ Petition· (Criminal) No.48 of
2014.
c 77. Our conclusions in respect of Questions referred in
the Referral Order, except in respect of sub question (b) of
Question in Para 52.1 of the Referral Order, are in conformity
with those in the draft judgment of Hon'ble Kalifulla J. Since
our view in respect of sub question (b) of Question in Para
0 52.1 of the Referral Order is not in agreement with that of
Hon'ble Kalifulla J., while placing our view we have dealt with
other questions as well.
E AB HAY MANO HAR SAPRE, J. 1. I have had the benefit
of reading the elaborate, well considered and scholarly written
two separate draft opinions proposed to be pronounced by
my learned Brothers Justice Fakkir Mohamed Ibrahim Kalifulla
and Jusiice Uday Umesh Lalit.
F _ 2. Having gone through the opinions of both the learned
Brothers very carefully and minutely, with respect, I am in
agreement with the reasoning and the concjusion arrived at
by my Brother Justice Uday Umesh Lalit in answering the
reference.
G
3. Since I agree with the line of reasoning and the
conclusion arrived at by my Brother Justice Uday Umesh Lalit
while answering the questions referred to this Bench, I do not
consider it necessary to give my separate reasoning nor do I
H
UNION OF INDIA v. V. SRI HARAN @MU RU GAN 84 7
wish to add anything more to what has been said by Brother A
Lalit J. in his opinion.
4. In my view, it is only when some issues are not dealt
with or though dealt with.but requires some elaboration, the
same cao be supplemented while concurring. I, however, do
not find any scope to meet such eventuality in this case and B
therefore no useful purpose would be served in writing an
elaborate concurring opinion.
ORDER c
1. Now that we have answered the Reference in the
matters, the matters will now be listed before an appropriate
three learned Judges' Bench for appropriate orders and
directions in the light of the majority Judgment of this Court.
D
Bibhuti Bhushan Bose Reference answered.
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