Union of India v. V. Sriharan @ Murugan & Ors. – December 2, 2015 [Supreme Court]

                                                                  Reportable

                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL ORIGINAL JURISDICTION
                     WRIT PETITION (CRL.) NO. 48 OF 2014

Union of India                                      …Petitioner

                                   VERSUS
V. Sriharan @ Murugan & Ors.                            …Respondents
                                    With
Writ Petition (Crl.) No.185/2014
Writ Petition (Crl.) No.150/2014
Writ Petition (Crl.) No.66/2014
Criminal Appeal No.1215/2011

                         J   U  D  G   M   E   N   T
FAKKIR MOHAMED IBRAHIM KALIFULLA, J.

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 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 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. 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.  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 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 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?



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 Constitutional power  under  Article  32
as in this case?




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?




Whether the Union or the State has primacy over the subject matter  enlisted
in List III 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  under
Section 432(7) of the Code?



Whether suo motu exercise of power of  remission  under  Section  432(1)  is
permissible in the scheme of the section,  if  yes,  whether  the  procedure
prescribed in sub-clause (2) of the same Section is mandatory or not?



Whether the term “‘Consultation’” stipulated in Section 435(1) of  the  Code
implies “‘Concurrence’”?”




It was felt that the questions raised were of utmost  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  who  appeared
for the State of Tamil Nadu as well as respondent 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)   (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 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  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  exercise  of  power
under Section 432(7) over the subject matter enlisted in  List  III  of  the
Seventh Schedule for grant of remission?
(e)   Whether there can be two Appropriate Governments under Section  432(7)
of the Code?
(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  Section  435(1)
of the Code implies ‘‘Concurrence’’?
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 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 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
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 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 and consequently any attempted exercise will fall to  the
ground.


Mr. Rakesh Dwivedi, learned Senior Counsel who appeared  for  the  State  of
Tamil Nadu would, however, contend that the Writ Petition does  not  reflect
any violation of  fundamental  right  for  invoking  Article  32,  that  the
maintainability 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 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, the learned  Senior  Counsel  submitted
that none of them would 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 & 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 Section 433-A of the Code there is nothing more  to  be
considered in this Writ Petition.

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 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 Schedule consisting of  Lists  I
to III 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  maintainability.  We,
therefore,  proceed  to  find  an  answer  to  the  questions  referred  for
consideration by this Constitution Bench.


Having thus steered clear  of  the  preliminary  objections  raised  by  the
respondents on the ground of maintainability even 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
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
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  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.

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 disposed of in  tune  with  the  answers
that may be rendered needs to be appreciated.

Keeping the above  factors  in  mind,  precisely  the  nature  of  questions
culminates as follows:

 As to whether the imprisonment for life means till  the  end  of  convict’s
life with or without any scope for remission?

(ii)  Whether a special category of sentence instead of  death  for  a  term
exceeding 14 years can be made by putting  that  category  beyond  grant  of
remission?


(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  by  this  Court  under
Article 32?

Whether State or the Central  Government  have  the  primacy  under  Section
432(7) of Code of Criminal Procedure?

Whether there can be two Appropriate Governments under Section 432(7)?

Whether power under  Section  432(1)  can  be  exercised  suo  motu  without
following the procedure prescribed under section 432(2)?

Whether the expression ‘‘Consultation’’ stipulated in  435(1)  really  means
‘‘Concurrence’’?



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, 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  III  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,
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.

Keeping in mind the above perception, we proceed to examine  the  provisions
contained in  the  Constitution.  Articles  72,  73,  161  and  162  of  the
Constitution read as under:

“Article 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, 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 by a Court Martial ;

 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 all cases where the sentence is a sentence of death.

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 sentence passed by a Court martial.



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.”



Article 73. Extent of executive power of the Union
Subject to the provisions of this Constitution, the executive power  of  the
Union shall extend—

(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:

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.

(2) Until otherwise provided by Parliament,  a  State  and  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  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



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  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  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 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.



Under Article 72, there is all pervasive power with  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
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 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 or to suspend or commute the sentence.

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 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 (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  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 sentence of death.

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 is a sentence of death, it is provided that  irrespective
of such enormous power vested with the President  relating  to  cases  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
Article 72(3) is also referable to the proviso to Article 73(1) as  well  as
Articles 161 and 162.

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 the exercise 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 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  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.

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 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 Union is available under Article 73(1)(a), as controlled  under
the proviso to the said Article.

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 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 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.

Pithily stated under the proviso to  Article  73(1)(a)  where  there  is  an
express provision in the Constitution or any 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  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 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 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 Union to exercise its Executive Power  while
examining the provision providing for the extent of Executive Power  of  the
State as contained in Article 162.

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 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 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 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  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 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 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.

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……….”



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  hors  the  specific  power  provided  under  Article
73(1)(a), namely, with respect to matters for which Parliament has power  to
make laws.

In this context, it will also be relevant to analyze the  scope  of  Article
162 which prescribes the extent of Executive 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  power  of  the  Union  as
well as its authorities are expressly conferred by the Constitution  or  the
laws made by Parliament.

If we apply the above Constitutional prescription of the Executive Power  of
the Union vis-à-vis the Executive Power of the State in the present  context
with which we are concerned, 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  III  (viz.),  Concurrent  List  of  the  Seventh   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  III,
under Article 246(2), the State Legislature has also got power to 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.

Therefore, the resultant position would be that, the Executive Power of  the
Union and its authorities in relation to  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  limitations  are
prescribed in the Code of Criminal Procedure.

On an analysis of the above-referred Constitutional provisions, namely,  72,
73, 161 and 162 what emerges is:

  The President is vested  with  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  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  as  has  been
provided under  Article  73(1)(a)  subject,  however,  to  the  stipulations
contained in the proviso therein.



  Insofar as cases where the sentence is sentence of  death  such  power  to
suspend, remit or commute the 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.



  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 Legislature of a State has  also  got  the
power to make laws.



  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 convicted of any offence against any law relating  to
a matter to which the Executive Power of the State extends and not beyond.



  The extent of Executive Power of the State which  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 authorities of the Union.



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 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.

The  express  provision  contained  in  the  Constitution  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 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  239B  of  the  Constitution,  the  power  to  issue
Ordinance is vested with the President, the Governor and  the  Administrator
of the Union, the State and the 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 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.

Under Article 246(2) of the Constitution,  Parliament  and  the  State  have
equal power to make laws with respect to any of the  matters  enumerated  in
List III 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  247  of  the  Constitution  is
referable to Entry 11A of List III of Seventh Schedule. The  said  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  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
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 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.


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 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, 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 long 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 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 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.

Irrespective of  special  situations  under  which  the  laws  made  by  the
Parliament would prevail over any State to  the  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 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 contained in sub-Article (2)  of  Article  254  and
the proviso.

Article 256  of  the  Constitution  is  yet  another  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 258A are placed. Article 257(1) prescribes the  Executive  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, 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. 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.

The saving clause contained in  Article  277  of  the  Constitution  is  yet
another provision, whereunder, the authority 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  that  effect  by  the  Parliament
under the very same Article.

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 the case may be, can make laws.

Article 285 of the Constitution is yet another provision where the power  of
the Union to get its properties  lying  in  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.

Article 289 prescribes the extent of the executive and legislative power  of
the Union and the Parliament  in  relation  to  exemption  of  property  and
income of a State from Union taxation.

The Executive Power of the Union and of each State 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.

The above Articles 277, 282, 285, 286 and 289 fall under Part  XII,  Chapter
I and Article 298 under Chapter III.

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 III provides the relative and corresponding executive  and  legislative
power of the Union and the States with  reference  to  Trade,  Commerce  and
intercourse within the territory of India.

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 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 the Constitution.

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 transitional measure.

Thus a close  reading  of  the  various  Constitutional  provisions  on  the
Executive Power of the Centre and  the  State  disclose  the  Constitutional
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  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
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 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.

We are, therefore, able to discern from a reading of the various  provisions
of the Constitution referred to  above,  to  be  read  in  conjunction  with
Articles 72, 73, 161  and  162,  which  disclose  the  dichotomy  of  powers
providing for segregation, combination,  specific  exclusion  (temporary  or
permanent), interrelation, voluntary surrender, one time or transitional  or
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 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 (celestial) the  Executive  Power
of the Union can be exercised like a bull in the China shop.

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 other provisions which enable  the  Parliament  to
prescribe such provisions by way of an enactment as and  when  it  warrants.
For instance, under Article 247 of the Constitution, by virtue of Entry  11A
of List III of the Seventh Schedule, the Parliament is empowered to  provide
for establishment of certain additional 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  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 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.

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 the Executive  Power  of  the  State.  Such  provisions  are
contained  in  Articles  246(2),  249,  250,  277,  286  and  369   of   the
Constitution.

Having thus made an elaborate  analysis  of  the  Constitutional  provisions
relating to the relative Executive Power of the Union and the  State  as  it
exists  and  exercisable  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 Establishment  Act  under  which
the CBI operates, to understand the extent  of  powers  exercisable  by  the
State and the Centre in order to find an answer  to  the  various  questions
referred for our consideration.

 In the Indian Penal Code, the provisions for our purpose can be  segregated
into two categories, namely, those 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  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  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’.  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  Appropriate  Government,
but in any case for  a  term  not  exceeding  fourteen  years.  Section  55A
defines the term  “Appropriate  Government”  with  particular  reference  to
Sections 54 and 55 of the Penal Code.

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  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 term, 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.   Similar  such  punishments  are
provided under Sections 376(2), 376A, 376D and 376E.

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 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 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 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 sentence and  life  sentence  is
provided which exercise of power 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 note the  provisions  in  the  Penal
Code  wherein  the  punishment  of  death  is  provided  apart  from   other
punishments. Such provisions are Sections  120B(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  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.

When we come to the provisions of Criminal 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 (45 of 1860)  will
have the same meaning respectively assigned 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’
for the purpose of Sections 432 and 433.  Section 433 enumerates  the  power
of the Appropriate Government for 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  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  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  its  powers
under Sections 432 and 433 of the Code under certain contingencies.

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 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  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 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 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.

Having noted the scope and ambit  of  the  said  Special  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
dated  22.05.1991  forwarding  the  order  of  Government  of  Tamil   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 5 of The  Indian  Explosive  Substances  Act,  1908
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, Public Grievances  and  Pensions,  Department  of  Personnel  and
Training issued the Notification dated 23rd May, 1991 extending  the  powers
and jurisdiction of the members of the Delhi  Special  Police  Establishment
to the whole of the State of Tamil Nadu for investigation  of  the  offences
registered in 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 302, 307,  326  of  the  Indian  Penal
Code, 1860 (Act No.45 of 1860) and 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;




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.”







Having thus noted the relevant provisions in  the  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:

‘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 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 to put that category beyond application of remission’.





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
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.

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 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
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:

“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”.



The learned Judges also took note of the various  punishments  provided  for
in Section 53 of the Penal Code 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.

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  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 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  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 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 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)
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 can claim release only if the remaining  sentence  is  remitted  by
Government”.


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:

“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 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.”





Again in another judgment reported as  State  of  Madhya  Pradesh  v.  Ratan
Singh and others - (1976) 3 SCC 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:



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 Penal Code. A  sentence  of
imprisonment for life means 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;”

                                                            (Emphasis added)



It will have to be stated that  Section  401  referred  to  therein  is  the
corresponding present Section 432.



We also wish to  make  reference  to  the  statement  of  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.”



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  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  affirmed  the
legal position that the life imprisonment only means  the  entirety  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.



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:

“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 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 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 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:

“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 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:

“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  under
Section 432 or Section 433 of the  Code.  In  the  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, imprisonment for the remainder of life.”



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  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 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 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.”



                                                       (underlining is ours)



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  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.
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 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 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  and  prayed  for  being  set  at  liberty.
Repelling such a contention and referring  to  the  judgment  of  the  Privy
Council in Pandit Kishori Lal v. King Emperor this Court held: (SCR pp. 444-
45)

 “If so, the next  question  is  whether  there  is  any  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 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  Committee
did not express its final opinion on that question. The  Judicial  Committee
observed in that case thus at p. 10:

 ‘Assuming that the sentence is to be regarded as one of twenty  years,  and
subject  to  remission  for  good  conduct,  he  had  not  earned  remission
sufficient to 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  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   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  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.”

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 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.  Delhi  Admn.  and
the latest judgment in Zahid Hussein v. State of W.B.
                                                            (Emphasis added)

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  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  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.

As far as remissions are concerned, it consists of 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  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, unless there is  a  commutation  of  such  sentence  for  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).
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 imprisonment which can be less than full  life  term  but  more
than 14 years and put that category beyond application  of  remission  which
has been propounded in paragraphs 91 and 92 of  Swamy  Shraddananda  (supra)
and has come to stay as on this date.

To understand and appreciate the principle set down in  the  said  decision,
it will be necessary to note the special 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 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  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 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 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 Karnataka, supported the view  taken
by Katju, J. (as  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  reconstructed  it  before
the Court. He said that after five years of marriage Shakereh’s  infatuation
for the 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 not willing to let 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 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 knocked off making a  clearing  to
push the wooden box through; God only knows saying what to  the  person  who
was to pass through it. He got a large wooden box (7 × 2 × 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  he  administered  a  very  heavy  dose  of
sleeping drugs to her on 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 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)
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 of the  box  and  pushed  it
through the opening made in 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 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 Sabah, 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 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 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  Machhi  Singh  v.
State of Punjab.”

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 of Punjab reported in (1980) 2 SCC 684, 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 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 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 accept the contention that  asking  the  Court
to state special reasons for awarding death  sentence  amounted  to  leaving
the Court to do something that was essentially a legislative  function.  The
Court held that the exercise  of  judicial  discretion  on  well-established
principles and on 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
“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  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  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.

43. In Machhi Singh the Court 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 Machhi Singh  was  rendered  on
20-7-1983, nearly twenty-five years ago, that is to say  a  full  generation
earlier. A careful reading of the  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 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  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 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 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 cannot be  taken  as
inflexible, absolute 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 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  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 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” 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 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  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  different.  No  one  can  undo  an  executed  death
sentence.”
                                                       (underlining is ours)

After  noting  the  above  principles,  particularly  culled  out  from  the
decision in which the very principle namely “the 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 Machhi Singh (supra) categories were  followed  uniformly  and
consistently. In this context, the learned Judges also  noted  some  of  the
decisions, namely, Aloke Nath  Dutta  and  Ors.  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 Nadu, and Puduchery 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  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 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
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
deficiencies in  the  criminal  justice  system.  Thus  the  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.”

We fully endorse the above anguish expressed by 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  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 know till the end and even  for  a  moment
that 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 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 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 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.
If one were to judge the case of the said appellant in 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  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 or punish  anyone  which  was  crystallized  from  time
immemorial 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 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, 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 of  such  crimes  and  the
punishments to be imposed meets with the requirement or the gravity  of  the
crime committed.
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 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 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.  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:

“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, 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  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  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  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 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. State of Punjab. In para  14  of  the  judgment
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. Taking the cue from the English legislation  on  abolition,  we
may 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 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 some 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.”
                                                       (underlining is ours)

Even after stating its grounds for the above  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), 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 - (2002) 6 SCC 686,  Mohd.
Munna v. Union of India and Ors. - (2005) 7  SCC  417,  Jayawant  Dattatraya
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.

Having thus noted the need for carrying out a special 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  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  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  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
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 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 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  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 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 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 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  punishment  at
all.”
                                                            (Emphasis added)

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  of
Justice Fazal Ali in Maru  Ram  (supra),  pages  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 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
modern trend of giving punishment a colour of  reformation  so  that  stress
may 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, 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
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.
      xxx         xxx       xxx
The question, therefore, is — should the country 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  present  generation,  with  the
prevailing social and  economic  environment,  would  produce  Valmikis  day
after day is to hope for the impossible.

xxx          xxx       xxx
xxx          xxx       xxx

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 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 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 easy remissions or  substituted  form  of
punishments 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  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 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  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  country  and  criminals  will  be  let
loose endangering the lives of thousands of innocent people of our  country.
In 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 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 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  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 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 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
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)

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 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 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  happen
to witness the occurrence are threatened  and  though  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
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 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  these  well  thought  out
principles, it can be said that the  conclusions  drawn  by  this  Court  in
Swamy Shraddananda (supra) is  well  founded  and  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  revolution
that he realizes the consequence of playing with human lives.   It  is  also
appropriate where His Lordship observed 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.
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, 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 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  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  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
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
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
society at large is going to derive.
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 reasons.  Major  among  them  are  the  disproportionate  Judges:
population ratio and lack of proper infrastructure for  the  institution  of
judiciary.  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 which results in abnormal delay in the  guilty
getting punished 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 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.
Keeping the above hard reality in mind,  when  we  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 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.
In this context, the principles which weighed  with  this  Court  in  Machhi
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 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  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 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  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 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  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 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  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.  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 action,  having
regard to the higher pedestal in which such Constitutional Heads are  placed
whose action will remain unquestionable except for  lack  of  certain  basic
features which has also been noted in the various decisions  of  this  Court
including Maru Ram (supra).
Though we are not attempting to belittle the scope and  ambit  of  executive
action of the State in exercise of its 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 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 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  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 that no  remission  or
other such liberal approach should not come  into  effect  to  nullify  such
imposition.
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  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  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
imprisonment  is  prescribed  under  the  Statute,  there  will   be   every
justification for the 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 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 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  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
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.
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
worthwhile to refer to the fundamental principles  which  weighed  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
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 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  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 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.  That  is  evident  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 Judiciary  are  more  sensitive  to  them
than to  the  other  attributes  of  daily  existence.  The  deprivation  of
personal liberty and the threat of the deprivation of life by the action  of
the State is in most civilised societies regarded seriously  and,  recourse,
either  under  express  constitutional  provision  or  through   legislative
enactment is provided to the judicial organ. But, the fallibility  of  human
judgment being undeniable even in the most trained mind,  a  mind  resourced
by a harvest of experience, it has been 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 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
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  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.I. Biddle v. Vuco Perovich enunciated this view, and  it  has
since been affirmed in other decisions. The power to 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  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 Bhushan, appearing for the petitioners  that  the
power to pardon 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 power under Article 72 is to be exercised on the  advice  of
the Central Government and not by the President on his  own,  and  that  the
advice of the Government binds the Head of the State.”
                                                       (Underlining is ours)



Again in paragraphs 8 and 10, this Court made a  detailed  analysis  of  the
effect  of  the  grant  of  pardon  or  remission  vis-à-vis  the   judicial
pronouncement and explained the distinguishing features in their  respective
fields in uncontroverted 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  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   of
vindicatory justice”. And in Ex 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  this
point all the authorities concur.  A  pardon  reaches  both  the  punishment
prescribed for the 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 … 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:

“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  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.”


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,  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  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 sentence imposed on him.  In  U.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 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  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  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., 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  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 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 undergone, leaving the order 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, did not  in  any  way  affect  the  order  of  conviction  and
sentence passed by the court which remained as it was.

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 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  the  convicted   person   suffers   less
imprisonment than that imposed by the court. The order of remission  affects
the 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  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 to it by this Court.
                                                       (Underlining is ours)

Having thus noted the well thought out principles  underlying  the  exercise
of judicial power and the  higher  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, 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%.  We only  point  out  that
great care and caution weighed with the 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  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.
Keeping the above principles in mind, when we make  a  study  of  the  vexed
question, we find that the law makers have restricted the  power  to  impose
death sentence to only 12 Sections  in  the  Penal  Code,  namely,  Sections
120B(1), 121, 132, 194, 195A, 302, 305, 307(2nd para), 376A, 376E,  396  and
364A. Apart from the Penal Code such punishments of death  are  provided  in
certain other draconian laws like TADA, 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  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.
In this context, we can make specific reference to the provisions  contained
in Chapter XXVIII 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,  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 XXVIII of the Code,  even  while  exercising  the  process  of
confirmation 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  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 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.

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 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.   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 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:
“151……… A sentence of death is the extreme penalty 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 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  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 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 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
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 for the dignity  of  human  life  postulates  resistance  to
taking a life through law's instrumentality. That ought not to be done  save
in the rarest of rare cases when the alternative  option  is  unquestionably
foreclosed.

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  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  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 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 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  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  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 instance:


I Manner of Commission of Murder


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,
(i) when the house of the victim is set aflame  with  the  end  in  view  to
roast him alive in the house.
(ii) 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  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 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 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.

III. Anti-social or socially abhorrent nature of the crime

(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 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.
(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

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.

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 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  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 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;
(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'.
(iii)Life imprisonment is the rule and death sentence is  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   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 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.

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?
(b) 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 ?

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 proceed to do so.”


                                                            (Emphasis added)


These revered principles were subsequently adopted or  explained  or  upheld
in following cases reported as Santosh 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 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.   While  specifying  the  reasons  in
support of such decision, the Court awarded death penalty in that case.

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 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 Bench of the  High  Court  of  Punjab  and
Haryana while dismissing the writ 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  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 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:
“49. To sum up:
Punishments must be proportionate to the nature and gravity of the  offences
for which the same are prescribed.
Prescribing punishments is the function  of  the  legislature  and  not  the
Courts.
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.
Courts 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.
Courts, however, have the jurisdiction  to  interfere  when  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.
Absence  of  objective  standards  for  determining  the  legality  of   the
prescribed sentence makes the job of  the  Court  reviewing  the  punishment
difficult.
Courts cannot interfere with the  prescribed  punishment  only  because  the
punishment is perceived to be excessive.
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  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.”

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.

Having thus noted the serious analysis made by this Court in the  imposition
of Death sentence and the principle of rarest of rare  cases  formulated  in
the case of Bachan  Singh  (supra)  which  was  subsequently  elaborated  in
Machhi 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  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 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 no remission can be considered. The 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  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  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
support the above submission. Having thus considered the  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  Imprisonment
is provided for, any prohibition that the  imprisonment  cannot  be  imposed
for any specific period within the said life span.  When  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  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 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 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  imposed.  We  also
note that when the report of Justice 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 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 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)  SCC  537  and
nothing  more.  Further,  the  said  Amendment  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
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  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  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  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
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 in Chapter XXVIII of Code of Criminal  Procedure
which we shall make in the subsequent paragraphs of this  judgment.  As  far
as the other apprehension that  by  prohibiting  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. 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.

As far as the argument based on ray of hope is concerned, it must be  stated
that however much forceful, the 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 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 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 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.147. Therefore, we find no scope to apply the concept of ray of  hope  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.

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 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  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  contained
in Chapter XXVIII 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.

Before doing so, we also wish to note each one of the 12 crimes  for  which,
the penalty of death and life  is  prescribed.   Under  Section  120B,  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 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 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
country.  Under Section 132, the punishment of  death  is  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  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 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 person who tendered such fake and fabricated evidence be  punished  with
punishment of death.  Under the Second 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 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.
Under Section 302, whoever commits murder of another person is liable to  be
punished with death or life 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 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.
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  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.
Under Section 376E whoever who was once  convicted  for  the  offence  under
Sections 376, 376A or 376D 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  death.
Under Section 376D 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.
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.
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.
Thus, each one of the offences above noted, for which the penalty  of  death
or  life  imprisonment  or  specified  minimum  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  was  committed  or  the
situation in which the victim was situated 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  it  fit  to  prescribe
extreme punishments for such crimes of grotesque (monstrous) nature.
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 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  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 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
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  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 at large  or
all  other  relevant  factors  which  cannot  be  put  in  any  straitjacket
formulae.
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  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 of such punishments.
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 only through the  Courts  of  law,  under  Chapter
XXVIII  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 consisting of two Hon’ble  Judges
of the High Court for its approval.  As  noted  earlier,  the  said  Chapter
XXVIII 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 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.
Such prescription contained  in  the  Code  of  Criminal  Procedure,  though
procedural, the substantive part rests in the 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 of Criminal  Procedure
and significantly one does not conflict 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  operating  the  definite
provisions, in particular, the provisions in the Penal  Code  providing  for
capital punishment and in the alternate the life imprisonment.
Once we steer clear of such distinctive features in the two enactments,  one
substantive and the other procedural, 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,   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 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 to be or can in any manner overlap the power  already  exercised  by
the Courts of justice.
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  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  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.
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  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 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, 30 or so on depending upon the  gravity  of  the
crime committed and the  exercise  of  judicial  conscience  befitting  such
offence found proved to have been committed.
We, therefore, reiterate that, the power derived from  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  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.
Viewed in that  respect,  we  state  that  the  ratio  laid  down  in  Swamy
Shraddananda (supra) that a special category of sentence; instead of  Death;
for a term exceeding 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  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.

With that we come to the next important question, 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 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:
“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 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.
(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  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.
(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  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  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  sentences  and  the  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  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,-
Where such petition is  made  by  the  person  sentenced,  it  is  presented
through the officer in charge of the jail; or

Where such petition is made by any other person, it 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 the liberty of any person or imposes any liability  upon
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,  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 passed.
Section 433.-Power to commute  sentence-  The  appropriate  Government  may,
without the consent of the person sentenced commute-
 A sentence of death, for any other punishment provided by the Indian  Penal
Code

 A sentence of imprisonment for  life,  for  imprisonment  for  a  term  not
exceeding fourteen years or for fine;

A sentence of rigorous imprisonment, for simple imprisonment  for  any  term
to which that person might have been sentenced, or for fine;

A sentence of simple imprisonment, or fine.”



Last part of the second question refers to the 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 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/remitting the sentence of the said convict in  the  same  case  by
invoking Sections 432 and 433 of Code of Criminal Procedure.
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 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  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 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 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  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 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 been no scope for this Court to consider  a  case
of claim for 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, without  any  justification
or colourful exercise of power, in either case by  the  Executive  Authority
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  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.   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  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 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  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)
“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, even if  the  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 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)

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  President
and the Governor of the State 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 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 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 in Articles 154, 161  and  163  of
the Constitution relating to the 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 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 Governor as  the
case may be. In the first blush though it may appear that exercise  of  such
power under Sections 432 and 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
power is restricted to either suspend the execution  of  sentence  or  remit
the whole or any part of the punishment.  Further under 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 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  therein  that
the Appropriate Government may 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, 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 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 effect.
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 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 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 ……..”.

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 submission made which the Court declined.  On  the  other  hand,
in the ultimate analysis, the Majority view was summarized  wherein  it  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 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 of the  Constitutional  power
to pardon, commute and the like.”

Therefore, it must be held that there is  every  scope  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  Article  32  of
the Constitution by this Court is concerned, we have already held  that  the
power under Sections 432 and 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
someone approaches this Court under Article  32  of  the  Constitution.   We
answer the said question on the above terms.
The next questions for consideration are:

“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?

Whether the Union or the State has primacy over the subject-matter  enlisted
in List III 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  under
Section 432(7) of the Code?”

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
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.  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 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 302 I.P.C., without the aid of TADA or  any  other
Central  Act,  State  Government  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 and Arivu @ Perarivalan were awarded death sentence,  while  3  other
accused, namely, Ravichandran, Robert Payas and Jayakumar  were  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.

Later, by the judgment dated 18.02.2014, the death sentence of three  others
was also commuted to life by this  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) 1 SCC 616.
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 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 to suspend,  remit
or commute a sentence of death.  He is the supreme Head of  the  State.   It
follows therefore 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………”

Dr. Ambedkar while making his  comment  on  the  amendment  proposed  stated
thus:
“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 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  power  is  vested  in
both, the President as well as the State concerned.  This is the scheme.”
                                                       (Underlining is ours)
After the above discussions on the proposed amendments, when it was  put  to
vote, the amendment was negatived.


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  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 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)
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 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 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 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 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  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.”

                                                            (Emphasis added)

Thereafter further discussions were held and ultimately when  the  amendment
was put to vote, the same was negatived.

It was,  therefore,  contended  that  in  the  absence  of  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 provision  of  the  Penal
Code and the Code of Criminal Procedure read along with  the  Constitutional
provisions disclose that Entry I of List III 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  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  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  corresponding  present  Section  433).
Paragraphs 29.10, 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 sentenced. This general provision  has,  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”  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 present definition of “Appropriate Government” 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  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  I.P.C.  to  be
omitted.- We, therefore, propose that sections 54,55 and 55A may be  omitted
from the Indian Penal Code and their substance incorporated in  section  402
of the Criminal Procedure Code. This section may be revised as follows:-
“402.  Power  to  commute  sentence.-(1)  The  Appropriate  Government  may,
without the consent of the person sentenced,-
commute a sentence of death,  for  any  other  punishment  provided  by  the
Indian Penal Code;
commute a sentence of imprisonment for  life,  for  imprisonment  of  either
description for a term, not exceeding fourteen years or for fine;
commute a sentence of rigorous imprisonment,  for  simple  imprisonment  for
any term to which that person might have been sentenced or for fine;
 commute a sentence of simple imprisonment, for fine.
(2) In  this  section  and  in  section  401,  the  expression  “Appropriate
Government” means-
(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 extends,  the
Central Government; and
(b) in other cases, the Government of the State within  which  the  offender
is sentenced or the said order is passed.”
29.12. The power to suspend or remit sentences under  section  401  and  the
power to commute sentences under section 402 are thus  divided  between  the
Central 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  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  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 within the Union List. The legal provisions are, however,  clear  on
the point and we do not consider that any clarification is required.”

The learned Solicitor General also relied upon the 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  Executive  Power  of  the
Central Government is saved  and,  therefore,  in  such  cases,  it  is  the
Central Government which is the Appropriate Government.

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
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 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  of  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 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.
The question posed for  our  consideration  is  whether  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  III
of the Seventh Schedule for grant of remission as a co-extensive 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  imprisonment  for  life
respectively by the Appropriate 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 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,  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
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 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 Government  is  also  empowered  to
pass  legislations  under  the  Constitution.   By  virtue   of   the   said
Constitutional provision contained in the proviso to Article 73(1)  (a),  if
the 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  in  those
cases, where the 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
life imprisonment in the context of Sections 54 and 55 of Penal Code.

Keeping it aside for a while, when we  refer  to  Section  55A  (b),  it  is
provided therein that in cases where the sentence, whether of death or  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 will be  the  Appropriate  Government.  Sub-
clause (b) of Section  55A  postulates  different  circumstances  viz.,  the
sentence whether of death or not is for 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  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 be made either of  death  or
not.  While analyzing Section 55A, vis-à-vis  Sections  54  and  55  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 State within  whose
jurisdiction the sentence came to be imposed.

With that analysis made with reference to Section  55  of  the  Penal  Code,
when we refer to Section 432(7) of Code of Criminal Procedure,  here  again,
we find the definition “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 imposed and the consequences in the event of breach of  any
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  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
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 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 and  162  of  the  Constitution,  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  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
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
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-à-vis its application for the purpose of  ascertaining  the
Appropriate 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 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  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
Executive Power under a law made by the Parliament or expressly provided  in
the Constitution, then, the Central  Government  would  be  the  Appropriate
Government. Therefore, what is to be noted is, whether the  sentence  passed
under a law relating to a matter to which the Executive Power of  the  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 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 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…..It  is  only  in
exceptional cases that the Centre may prescribe that the  execution  of  the
concurrent law shall be with the Centre.



If the  said  prescription  is  satisfied  than  it  would  be  the  Central
Government who will be the Appropriate Government.

For the purpose of ascertaining which Government would  be  the  Appropriate
Government as defined under 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  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
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 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
Constitutional 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 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  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  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  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 sequel to it, Central Government will be the  ‘Appropriate
Government’ to pass orders under  Sections  432  and  433  of  the  Code  of
Criminal Procedure.

In order to understand this proposition of law, we can make a  reference  to
the decision relied upon by the learned 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 489D 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 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. In that context,  this  Court
noted that the four sections, viz., Sections 489(A) to 489(D) 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 same would be  covered  by  the
expression “currency coinage 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.   It  was,  therefore,  held
that the 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  decision  throws
added light on this aspect.

Therefore, whether under any of the provisions  of  the  Criminal  Procedure
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 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  in  the  Code  of  Criminal
Procedure or under such special enactments of the Centre  if  the  Executive
Power is 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 under 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, then alone the  Appropriate
Government would be the State.

Therefore, keeping the above  prescription  in  mind  contained  in  Section
432(7) and Section 55A of the IPC, it will 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  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  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 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.
However, when it comes to the question of primacy 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.   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
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.
But in cases which are governed by the proviso to 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(D) of the Penal Code.   While
dealing with the said case, this Court noted that though the  offences  fell
under the provisions of the Penal Code, which law was covered by Entry 1  of
List III of  the  Seventh  Schedule,  namely,  the  Concurrent  List   which
enabled both the Centre as well as the State Government  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
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 under Sections 432  and  433  Code  of
Criminal Procedure.
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, 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 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 exclusion of State.
 Thirdly, a situation may arise where the authority to  bring  about  a  law
may be available both to the Union as well as the State, that the  law  made
by the Parliament may invest the Executive Power with the Centre while,  the
State may also 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 which of the two, namely,  either  the
State or the Union would gain primacy to pass any order of  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

      xxx xxx xxx

      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  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  expressly  conferred  by
the Constitution or by any law made by Parliament  upon  the  Union  or  its
authorities.
Therefore, the answer to the question should be to  the  effect  that  where
the case falls under the first test noted 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  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
make laws and thereby  if  the  Executive  Power  of  the  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.
Therefore, we answer the question Nos.52.3,  52.4  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.
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,  whether  the  procedure
prescribed in sub-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 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.
(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  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.”

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 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.
Sub-section (2) of Section 432 pertains to the 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  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 forwarded.
Before making an analysis on the question referred  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 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 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 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  Constitutional  power  with  high
amount of circumspection and 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 mala 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 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.
We must state that such observations and  legal  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.
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 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 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 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  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  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 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 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).
By following the said procedure prescribed under Section 432(2), the  action
of the Appropriate Government is 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 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  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  also  be  borne  in  mind  that  while  for  the  exercise  of  the
Constitutional power under Articles 72 and  161,  the  Executive  Head  will
have the benefit of act and advice of the  Council  of  Ministers,  for  the
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.
Therefore, it can safely be held that the exercise of  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  Section  432(2).  We,  therefore,   fully   approve   the
declaration of law made by this Court in Sangeet  (supra)  in  paragraph  61
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
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 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 be rendered by the  Presiding  Officer  of  the  concerned
Court.
We are now left with the question namely:
“Whether the term “‘Consultation’” stipulated in Section 435(1) of the  Code
implies “‘Concurrence’”?”

      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 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.
  Which  was  investigated  by  the  Delhi  Special   Police   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
Which involved the misappropriation or destruction of,  or  damage  to,  any
property belonging to the Central Government, of
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 by the State  Government  except  after  consultation
with the Central Government.”

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  Rajiv  Gandhi  Murder   case.    Learned
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 Special Court under TADA Act was set aside by  this  Court.   While  the
conviction of the respondents under Sections 212 and 216 of  I.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 Telegraph Act  were  all  confirmed  by  this  Court.   That  apart
conviction under Section 120-B I.P.C. read with Section 302  I.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-9 Robert Payas, A-10 Jayakumar and A-16 Ravichandran  was  altered
as imprisonment for life.  Subsequently  in  the  judgment  in  V.  Sriharan
(supra) even the death sentence against A-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
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.
As far as the remission provided under Section 432 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  factual
matrix in the Rajiv Gandhi Murder case, vis-à-vis the 7 respondents  therein
as a sample situation, we proceed to analyze these questions  arising  under
Section 435 Code of Criminal Procedure  Learned  Solicitor  General  in  his
submissions contended that since the punishments imposed 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) 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,
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
investigation right from the beginning was entrusted with the  C.B.I.  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 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 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 ‘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 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.

As against the above submissions, Mr. Dwivedi, learned  Senior  Counsel  for
the 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,  the  concern  of  the  State
Government in this case. The learned 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  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  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  ‘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
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), the learned Senior Counsel  pointed
out that with reference to those offences where  the  investigation  can  be
carried out entirely by 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,  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, 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,  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  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 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. Janekere C. Krishna and others - (2013)  3  SCC  117  and  S.R.
Bommai and others v. Union of India and others - (1994) 3 SCC 1  in  support
of his submissions.
In order to appreciate the respective submissions, it will be  necessary  to
refer to the relevant Government orders 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 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:
“23. On 21-5-1991, Haribabu bought a garland made of  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 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  armed
himself with a pistol and then he proceeded to the house of Vijayan (A-12).

24. Sivarasan directed Suba and Dhanu to get themselves ready for the  final
event. Suba and Dhanu entered into an inner room. Dhanu was  fitted  with  a
bomb 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.

25. The auto-rickshaw which 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  of  Nalini  (A-1).  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 Sivarasan to a nearby  temple  where
Dhanu offered her last prayers. They then went to  “Parry’s  Corner”  (which
is a starting place of many bus services at Madras).  Haribabu  was  waiting
there with the camera and garland.

26. All the 5 proceeded to Sriperumbudur by bus. After reaching  there  they
waited for the arrival of Rajiv 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  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  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.
Dhanu could reach near the red carpet where a little girl (Kokila)  and  her
mother (Latha Kannan) were waiting to present a poem written  by  Kokila  on
Rajiv Gandhi.

28. When Rajiv Gandhi arrived at the meeting place  Nalini  (A-1)  and  Suba
got out of the enclosure and moved away. 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 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 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.

29. Thus the conspirators perpetrated  their  prime  target  achievement  at
10.19 p.m. on 21-5-1991 at Sriperumbudur in Tamil Nadu.

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 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 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 Notification  of  the  Government  of  Tamil  Nadu  under
Section 6 of 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, 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 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 against the  present
Respondents alone setting aside the conviction as against the 19 accused.
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  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 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 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 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  the  Appropriate
Government as has been stipulated under Section 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 over  the  State  wherever
the State Legislature has also got power to make laws. Having  analyzed  the
implication of the said proviso, vis-à-vis, Articles 161, 162  and  Entry  1
and 2 of List III of the Seventh Schedule, by virtue of which,  the  Central
Government gets primacy as an  Appropriate  Government  in  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 Government becoming  the  Appropriate  Government  by  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 III 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 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 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.
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
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 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, 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 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 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  to  rise
above them and to serve the country which we have succeeded in liberating”.

Again in paragraph 432, the principle is stated as to how construction of  a
Constitutional Provision is to be analyzed which reads as under:
“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.”
                                                            (Emphasis added)
 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 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, 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  judiciary,  has  to  be
distinguished from the colour the same word  ‘‘Consultation’’  may  take  in
the context of the executive associated in that process  to  assist  in  the
selection of the best available material.”

Thereafter tracing the relevant provisions in  the  pre-Constitutional  era,
namely, the Government of India Act, 1919, 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 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  expression  ‘‘Consultation’’  was  used
instead of ‘‘Concurrence’’. Paragraph 450 of the said judgment gives  enough
guidance to anyone dealing with such issue which reads as under:
“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  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 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  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 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 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,  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)

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 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 ‘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  groups.  It  was  also  stated  in  the
context of Articles  124(2)  and  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 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 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  applied  in  a
situation like the one which we are facing at the present juncture.

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 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 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
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  in  a  given  case  to  determine
whether the process of  ‘Consultation’  as  required  under  the  particular
situation did in fact stand complete.”
                                                            (Emphasis added)

 The  principles  laid  down  in  the  larger  Constitution  Bench  decision
reported in Supreme Court Advocates on Record Association (supra)  was  also
followed in N. Kannadasan (supra).

While noting the above principles  laid  down  in  the  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. 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
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 evolution, ours is not a case of  independent
States coming together to form a federation as in 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 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:
“275. A review of the provisions  of  the  Constitution  shows  unmistakably
that while creating a federation, the Founding Fathers wished  to  establish
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 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, 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  III),  the  parliamentary
enactment is given the  primacy,  irrespective  of  the  fact  whether  such
enactment is earlier 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 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 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  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. 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.  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 finances are concerned, the 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 or fully, to the States. Suffice it to say  that  Centre
has been made far  more  powerful  vis-a-vis  the  States.  Correspondingly,
several obligations too are placed upon the  Centre  including  the  one  in
Article 355 — the duty to protect every State  against  external  aggression
and 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  and  a
power.”

After making reference to the division of powers  set  out  in  the  various
Articles as well as  the  Lists  I  to  III  of  Seventh  Schedule  and  its
purported insertion in the Constitutional provisions, highlighted  the  need
for empowering 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 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   and   a   power.
Simultaneously, in paragraph 276, the learned Judge also  noted  that  while
under the Constitution, greater 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  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.
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 the  District  Officer  with  the  District  Judge  before
considering 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 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  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 Government counsel cannot be 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’ 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 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 amount to ‘‘Concurrence’’.  Therefore, the said  judgment  is  also
clearly distinguishable.
Having considered the submissions of the respective counsel  for  the  Union
of India, State of Tamil Nadu and the other  counsel  and  also  the  larger
Constitution Bench decisions and the subsequent decisions of this  Court  as
well as the specific prescription contained in Section 435(1)(a) read  along
with Articles 72, 73(i)(a), 161 and 162 of the Constitution,  the  following
principles can be derived to note how and  in  what  manner  the  expression
‘‘Consultation’’ occurring in Section 435(1)(a) can be construed:-
Section 435(1) mandatorily requires the  State  Government,  if  it  is  the
‘Appropriate  Government’  to  consult  the  Central   Government   if   the
consideration of grant of remission or commutation under Section 432 or  433
in a case which falls within any  of  the  three  sub-clauses  (a)(b)(c)  of
Section 435(1).
The expression ‘‘Consultation’’ may mean differently in different  situation
depending on the nature and purpose of the statute.
When it came to the question of appointment of judges 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’’.
While considering the appointment to the post of Chairman of State  Consumer
Forum, since the said post  comes  within  four  corners  of  judicial  post
having regard to the nature of functions  to  be  performed,  ‘Consultation’
with the Chief Justice of the High Court would give  primacy  to  the  Chief
Justice.
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 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 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.
Again  in  the  golden  words  of  that  great  personality,  in  the   pre-
independence era while we were engaged in the 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  we  got  liberated  after  a  great
struggle.
The  ratio  and  principles  laid  down  by  this  Court  as   regards   the
interpretation  and  construction   of   Constitutional   provisions   which
conflicts with the 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
the National, level in order  to  achieve  the  avowed  object  of  National
integration and larger public interest.
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 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  that  men
will not sacrifice the interest of the country at large,  for  the  sake  of
smaller groups and areas assumes significance.
To ascertain, in this context, when more than one authority  or  functionary
participate  together  in  the  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 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.
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, different languages, different  cultures,  vast  difference  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  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  be  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 the spheres allotted to the  respective
States, they are supreme.
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 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  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 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.
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 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).
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  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 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 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 cannot held to be interfering with the  independent  existence  of
the State concerned.
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 to the security borders of this country or the  property
in 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  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 significance and primacy to the Center.

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
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  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  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
consequently the process of ‘‘Consultation’’ should in reality  be  held  as
the requirement of ‘‘Concurrence’’.

For our present purpose, we can apply the  above  principles  to  the  cases
which come up for consideration, 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.

Answer to the preliminary objection as to the maintainability  of  the  Writ
Petition:
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  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 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?

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 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 imprisonment for life or for a 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 remission under Sections 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 Constitutional  power
under Article 32 as in this case?

Ans. The exercise of power under Sections 432 and 433 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 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.
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?

52.4 Whether the Union or the State  has  primacy  over  the  subject-matter
enlisted in List III of the Seventh 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?

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 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 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 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.  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 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 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?



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  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”?


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 and consequently the process of ‘‘Consultation’’ in reality be  held
as the requirement of ‘‘Concurrence’’.
We thus answer the above questions accordingly.

                                                  …....….………..……………………C.J.I.
                                                                [H.L. Dattu]

                                                      …………………..………………………..J.
                                          [Fakkir Mohamed Ibrahim Kalifulla]


                                                      …………….………………..…………….J.
                                                      [Pinaki Chandra Ghose]

New Delhi
December 02, 2015

                                                                  REPORTABLE

                        IN THE SUPREME COURT OF INDIA

                       CRIMINAL ORIGINAL JURISDICTION

                     WRIT PETITION (CRL.) NO.48 OF 2014


UNION OF INDIA ETC.                        …. PETITIONERS

                                   Versus

V. SRIHARAN @ MURUGAN
 & ORS. ETC.                             .… RESPONDENTS

                                    WITH
                     WRIT PETITION (CRL.) NO.185 OF 2014
                     WRIT PETITION (CRL.) NO.150 OF 2014
                    WRIT PETITION (CRL.) NO.66 OF 2014 &
                       CRIMINAL APPEAL NO.1215 OF 2011


                               J U D G M E N T

Uday Umesh Lalit, J.

WRIT PETITION (CRL.) NO.48 OF 2014


 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 25.04.2014[1], hereinafter referred to as the Referral Order.
Background Facts:-

On the night of 21.05.1991 Rajiv Gandhi, former Prime Minister of India  was
assassinated by a human bomb at  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  Section  6   of   Delhi   Special   Police
Establishment Act (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 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  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  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  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
the sentence awarded to them. These cases were heard together.

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/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 TADA Act  are  set  aside
in respect of all 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 Indian  Penal  Code,  Section  14  of  the
Foreigners Act, 1946, Section 25(1-B) of the Arms  Act,  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 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.

734.  The conviction for the offence under Section 120-B read  with  Section
302 Indian Penal Code as against A-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 @ Arivu) is confirmed.

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 A-1  (Nalini),  A-2
(Santhan), A-3 (Murugan) and A-18 (Arivu) is confirmed.  The death  sentence
passed on A-9 (Robert), A-10 (Jayakumar) and A-16 (Ravichandran) is  altered
to imprisonment for life.  The Reference is answered accordingly.

737.  In other words, except A-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.”


Two sets of Review Petitions were preferred against 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  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
Petitions.  Thomas J. opined that the Review Petition filed in respect of A-
1 (Nalini) alone be allowed and her sentence be altered to imprisonment  for
life.  Thus, in the light  of  the  order  of  the  majority,  these  Review
Petitions were dismissed.

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 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 convicts A-2, A-3 and  A-
18 were rejected by the Governor 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 Petitions  were  transferred  by
this Court to itself by order dated 01.05.2012[4].  By  its  judgment  dated
18.02.2014 in V. 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 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
of V. Sriharan alias  Murugan,  T.  Suthendraraja  alias  Santhan  and  A.G.
Perarivalan alias 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  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 terms and the transferred cases are, accordingly, disposed of.”


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 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 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.

7.    Union of India immediately  filed  Crl.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 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. Suthendraraja @ Santhan  and  A.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 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 A.G. Perarivalan @ Arivu.

List on 6th 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 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/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  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:-
      “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  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.”

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 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)[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 imprisonment for a term in excess  of
fourteen years and to put that category beyond application of remission?

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 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?

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?

52.4. Whether the Union or the State has  primacy  over  the  subject-matter
enlisted in List III of the Seventh 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?

52.6. Whether suo motu exercise of power of 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?

52.7. Whether the term “consultation” stipulated in 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  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.

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  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  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.

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  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  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 Nadu were essentially federal in  nature  and  that  the  only  remedy
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 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 patriae was entitled to  approach  this  Court  under
Article 32.  It was submitted that since  private  individuals,  namely  the
convicts were parties to this lis, a suit under Article 131 would not  be  a
proper remedy.  We  find  considerable  force  in  the  submissions  of  the
learned Solicitor General.  Having 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 Bench  in  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  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, 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.”


      In the  circumstances,  we  reject  the  preliminary  submissions  and
proceed to consider the questions referred to us.

DISCUSSION


12.   We have heard Mr. Ranjit Kumar, learned  Solicitor  General,  assisted
by Ms.  V.  Mohana,  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 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 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  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  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
that  such  power  stands  excluded.   The  questions   referred   for   our
consideration in  the  Referral  Order  raise  issues  concerning  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.

Re: Question Nos.3, 4 and 5 as stated in para Nos.52.3,  52.4  and  52.5  of
the Referral Order


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?

52.4. Whether the Union or the State has  primacy  over  the  subject-matter
enlisted in List III of the 7th  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?


14.   Powers to grant pardon and to suspend, remit or commute sentences  are
conferred by Articles 72 and 161 of the Constitution upon the President  and
the Governor.  Articles 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.-

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-
in all cases where the punishment or sentence is by a Court Martial;
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 all cases where the sentence is a sentence of death.

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 sentence passed by a Court Martial.

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  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 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 Bombay[8] it was 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…….”.

In Kehar Singh and another v. Union of  India  and  another[9]  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  sentences  are  readily
distinguishable. 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  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  in  the  first
instance.”

      The Constitution Bench further observed:

 “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  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  Andhra  Pradesh   and
others[10] Pasayat 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 act of grace and humanity in proper cases.  Without  such
a power of clemency, to be exercised by some 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  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 at p.  1163):“A
pardon 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 served by inflicting  less  than  what  the  judgment
fixed.”


      In his concurring judgment Kapadia J. (as the  learned  Chief  Justice
then was) stated:

“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 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 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  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  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-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. 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  compromised  on  the  grounds   of   political
expediency. To  go  by  such  considerations  would  be  subversive  of  the
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 “Government  according  to  law”
requires the prerogative to be exercised in a  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  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  conferred  power  under  a
sole head i.e. 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  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 regardless 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 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.

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 of the Union shall extend-

to the matters with respect to which 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
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 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  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 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:
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  Parliament  upon  the
Union or authorities thereof. ”


18.   As regards clause (b) of Article 73(1) there is  no  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 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 III of the 7th Schedule,  both   Parliament  and
the State have power to 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 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  III
of the Constitution. The  Proviso  thus  deals  with  situations  where  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 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 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 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 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  dated  30th  December,
1948 in the Constituent Assembly[11] 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:
“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 a federal one. I  submit,  Sir,  if
this article, which gives  even  executive  powers  with  reference  to  the
subjects in the Concurrent List 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 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 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
Concurrent List there is a large number of subjects which ought not to  have
found place in it. We 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 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 accept either  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 I think it is desirable that the  House  should  know
what exactly is the  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 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 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  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.”

      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  or  by  the
State Legislature,  was  ordinarily  to  be  with  the  State.   The  second
proposition pertaining to the 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 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  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 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 engrafted on clause (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 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  the  Indian  Penal  Code  which   defines
appropriate Government as under:
“55A.   Definition of "appropriate Government". -- In  Sections  54  and  55
the expression "appropriate Government" means:-
(a) 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; and
(b) in cases where the sentence (whether of death or 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  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 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.


(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  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.

(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  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  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 sentences and  the  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 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-

where such petition is  made  by  the  person  sentenced,  it  is  presented
through the officer in charge of the jail ; or

where such petition is made by any other person, it 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 the liberty of any person or imposes any liability  upon
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,  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 passed.

433. Power to commute sentence. The appropriate 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;

(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 ;

(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
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 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 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 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-

which  was  investigated  by  the   Delhi   Special   Police   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

which involved the misappropriation or destruction of,  or  damage  to,  any
property belonging to the Central Government, or

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 by the State  Government  except  after  consultation
with the Central Government.

(2)   No order of suspension, remission or commutation of  sentences  passed
by the State Government in relation 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 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.”


23.   As regards definition of appropriate  Government,  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 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  State  within  which  the
offender is 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 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. Vinay Kumar and others[15]and 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.

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 rest the executive power of the State may extend.  Since  the  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  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 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 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 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 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 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 III 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,
which provide for “appropriate Government” as prescribed in Section  55A  of
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
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 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 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 others2, the respondents-convicts were 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,  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  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 II. It being in  the  exclusive  executive
domain  of  the  State  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  III  being
part of the Indian Penal Code itself,  then  the  issue  may  arise  whether
Central  Government  or  the  State  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
Court in G.V. Ramanaiah v. The 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 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 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”, by Currency  Notes  Forgery  Act,  1899,  in
order to make better provisions for the  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 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 power to legislate with regard to “offences against  laws  with  respect
to any of the matters in the Union List”. 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  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  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 7th  Schedule
to the Constitution and that 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 the appellant.   The  decision
in G.V. 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.

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 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  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 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.
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 III of  the
Seventh Schedule of the Constitution.”


      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 India[19] 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  II
empowers the State to enact the legislation  relating  to  public  order  or
security insofar as it affects or relates to a  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 assigned to Entry 1  of  List  II.   In  both  these
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 with  “terrorism”  in  contra-distinction  to
the normal issues of “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 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 7th 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 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 III,  in  accordance  with  the  principles  as
discussed hereinabove, it is the executive power  of  the  State  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
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.

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:-

 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?

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
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 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.
      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 III of the  7th  Schedule  to  the  Constitution  of
India for exercise of power of remission?

Answer: In respect of matters in  list  III  of  the  7th  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  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:-

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 (2) of Cr.P.C.. Additionally, in  respect  of
cases of death  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.
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 the section, if yes, whether  the  procedure
prescribed in sub-section (2) of the same section is mandatory 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  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 Shraddananda(2)6  this
aspect was explained thus:
“80. From the Prisons Acts and the Rules it appears that  for  good  conduct
and for doing certain duties, etc. inside the jail the prisoners  are  given
some days’ remission on a monthly, quarterly or annual basis.  The  days  of
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  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.”


      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 Ram etc. etc. v. Union of India & Another[21] 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  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  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 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……..
……..  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 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.”

32.   The difference between earned remissions “for good 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
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 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  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 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 Koli v.  State  of  Gujarat  when  it  was
observed  that  since  remission  can  only  be  granted  by  the  executive
authorities, the 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 432 Cr.P.C. cannot be  suo  motu
for the simple reason that this sub-section is only an  enabling  provision.
The appropriate Government is enabled to “override” 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 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 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 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
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 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 Government.”

B]    In Mohinder  Singh v. State of Punjab[23]  the  observations  in  para
27 were to the following effect:
“27. 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 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 suo motu for the simple reason  that  this  is  only  an  enabling
provision and the same would be possible 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 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. As rightly observed by  this  Court  in  Sangeet  v.
State of Haryana, there is a 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  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 further substantive check in Section 433-A of the Code.”


C]    In Yakub Abdul Razak  Memon  v.  State  of  Maharashtra  through  CBI,
Bombay[24], it was observed in paras 921 and 922 as under:
“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 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  be  possible  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  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  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 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.”


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 by or on  behalf  of  the  prisoner,    opinion  of  the
Presiding Judge  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 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 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 must be in accord with the 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 scheme of the section, if yes,  whether
the  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 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:
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 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  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 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.  Govt. of Tamil Nadu[25], State of  U.P.  &  another  v.
Johri Mal[26], State of Uttar Pradesh and others v.   Rakesh  Kumar  Keshari
and another[27],  Justice Chandrashekaraiah (Retd.) v.  Janekere C.  Krishna
and others[28]  Mr. Rakesh Dwivedi, learned Senior Advocate  submitted  that
the term 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   General   relied    upon   Supreme   Court   Advocates-on-Record
Association and others v. Union  of  India[29]  and  State  of  Gujarat  and
another v. Justice R.A. Mehta(Retd.) and others[30]   to  submit   that  the
consultation referred to in the provision must mean concurrence on  part  of
the Central Government.    In his submission without such  concurrence,   no
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  ”  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  the   integrated   process   of
appointments is best equipped to discharge the greater  burden  attached  to
the role of primacy, of making the proper choice; 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 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  performance   of   this   function   assumes
significance only when they cannot reach an agreed  conclusion.  The  debate
is academic when a decision is reached by agreement taking into account  the
opinion of everyone participating together  in  the  process,  as  primarily
intended. The situation of a difference at the end, raising the question  of
primacy, is best avoided  by  each  constitutional  functionary  remembering
that all of them are participants in a joint venture, the aim  of  which  is
to find out and select the most suitable candidate  for  appointment,  after
assessing the comparative merit of all those available. This  exercise  must
be performed as a pious duty  to  discharge  the  constitutional  obligation
imposed collectively on the highest functionaries drawn from  the  executive
and the judiciary, in view of the great significance of these  appointments.
The common 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  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 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, if there be any disagreement even then  between  them
which cannot be ironed out by 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
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.”


      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.
      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 “consultation”  varies  from
case to case, depending upon its fact  situation  and  the  context  of  the
statute as well as 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
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 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 context  of  the  statute  as
well as the object it seeks to achieve.

37.   In the light of the aforesaid principles, we now consider  the  object
that sub-clauses (a), (b) and (c) of Section 435(1) of the Cr.P.C.  seek  to
achieve.   Clause (a) deals with cases 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  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 of West Bengal and  others
v.  Committee  for  Protection  of  Democratic  Rights,  West   Bengal   and
others[31].   For instance, in the present case the investigation  into  the
crime in question i.e. Crime No. 3 of 1991 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  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 another v. State  of  Bihar  and  another[32]
that  in matters where investigation was handed over to the CBI, it  is  the
CBI alone  which is competent to 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
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-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 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 432  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 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  Government  which
through CBI or other Central  Investigating  Agency  was  in-charge  of  the
investigation and had complete carriage of the proceedings.

40.   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 the offence 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. 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 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  benefit  under
Section 432 or 433 by the State Government 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” stipulated in 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 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
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 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?


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 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  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 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 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
executive having already considered the matter and rejected 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  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.

42.   We would first deal with  the  submission  of  the  learned  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:
“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  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 behalf.

59.  It  is  apparent  that  superficially  viewed,  the  two  powers,   one
constitutional and the other statutory, are coextensive. But two things  may
be similar but not the same. That is 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  different,  the  substance  is
different, the strength is 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.
Therefore, Section 433-A cannot be invalidated as  indirectly  violative  of
Articles 72 and 161. What the Code gives, it can take, and  so,  an  embargo
on Sections 432 and 433(a) is within the legislative power of Parliament.”


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
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  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 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 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 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  Section  433  a
sentence of death  can  be  commuted  for  any  other  punishment  including
imprisonment 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  statutory
minimum period of 14 years of actual imprisonment.  We therefore accept  the
submission of Mr. Rakesh Dwivedi, 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  433A  contemplates  such
subsequent exercise of  power.   At  this  stage,  the  observations  in  G.
Krishta Goud and J. Bhoomaiah v. State of Andhra Pradesh and  others[33]  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.”

This principle was re-iterated in para 7 of the  decision  in  Krishnan  and
others v. State of Haryana and others[34] as follows:-
 “In fact, Articles 72 and 161 of the  Constitution  provide  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[35]it was 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 whether the  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 confining the convict any more; the socio-economic  condition  of
the convict’s family and other similar circumstances.”


      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
assisted by prevailing occasion and passing of time”.  Having regard to  its
wide amplitude 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 will also be relevant as regards exercise under Section 432/433 Cr.P.C.

      In State (Govt. of NCT of Delhi)  v.  Prem  Ram[36]  it  was  observed
thus:
“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 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 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.  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 any  more”  as  stated  in
State  of  Haryana  v.   Jagdish  (supra)  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 judicial review.  Further, in the  light  of  our
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.   In the instant case, A-1 Nalini and other convicts A-2, 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
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.  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 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 actual imprisonment, there is definitely change  in  circumstances.
An earlier exercise of power under 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  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 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 another v. Union of India and others[37].   The  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.

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 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  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.
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:
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? And

Whether as per the principles enunciated in 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 to put that category beyond application of remission?

Re: Sub-question (a) of question No.1 in Para 52.1

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?


50.   In Gopal Vinayak Godse v. The State  of  Maharashtra  and  others[38],
the petitioner was convicted on 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  that  he  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  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, 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  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 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 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  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  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 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 Godse was refused. The nature of  a  life  sentence  is
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 Section 432 of the 1973 Code) by  the
appropriate Government or on a clemency order in  exercise  of  power  under
Article 72 or 161 of the Constitution. Godse (supra) is  authority  for  the
proposition  that  a  sentence  of  imprisonment  for   life   is   one   of
"imprisonment for the  whole  of  the  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  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 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 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 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.

53.      In paras 27 and 38 of the decision in State of Haryana v.  Mahender
Singh and others[39] , 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 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.

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
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 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 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  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
and others[40] .  The right to apply  and  invoke  the  powers  under  these
provisions does not mean that he can claim  such  benefit  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 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:
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?

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 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 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?

55.    In  Swamy  Shraddananda(1)4  the  appellant  was  convicted  for  the
offence of murder and given death sentence, which  conviction  and  sentence
was under appeal in this Court.  A Bench  of  two  learned  Judges  of  this
Court affirmed the 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  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.  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. 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  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, 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
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
answer? The answer lies in breaking this standardisation 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 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 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. State of Punjab. In para  14  of  the  judgment
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. Taking the cue from the English legislation  on  abolition,  we
may 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 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 some 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.”


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
Punjab[41] which  in  turn  had  considered  Rajendra  Prasad  v.  State  of
U.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 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 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  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 sentence may be excessive and unduly  harsh
or it may 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  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 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 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 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  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 death penalty on the statute book  but  to  actually  use  it  as
little as possible, really in the rarest of rare cases. This would  only  be
a reassertion of the Constitution Bench decision  in  Bachan  Singh  besides
being in accord with the modern trends in penology.”




 57.   Finally, in paragraph 95 of its Judgment   in  Shraddananda(2)6  this
Court substituted the death sentence given  to  the  appellant  to  that  of
imprisonment for life and directed that he would not be  released  from  the
prison till the rest of his life.  While doing so, this Court made it  clear
that it 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 following effect:-

“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  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  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 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 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 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  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.
      (e)   The unsound way in which remissions  are  granted  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  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 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.

59.   We must at the outset state that while commuting  the  death  sentence
to that of imprisonment for life, this Court in  V.  Sreedhar  v.  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 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.  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 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 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
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  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 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 Section 433 A in 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  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:

“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 experience, it has been  found  necessary  to  make  a  few
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:-
“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 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. 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 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 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 imprisonment were released at the 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.”


      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.


Shraddananda(2)6 referred to earlier decision of 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:-

“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  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 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.”


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  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 14.7.2 were as under:-







“ALTERNATIVE TO DEATH PENALTY



14.7.1 Section 53 of the IPC enumerates various kinds  of  punishments  that
can be awarded to the offenders, the highest being  the  death  penalty  and
the second being the sentence of imprisonment for life. At present there  is
no sentence that can be awarded higher than 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 in the rarest of rare  cases,  the  Committee
considers that it is desirable 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 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  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 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.”





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:-
“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.

14.  Mohd. Munna v. Union of India reported in 2005 (7) SCC  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 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 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   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 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 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.


64.      Thus despite  recommendations  of  Justice  Malimath  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  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  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 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 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  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 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 others[43], while 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 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:
“(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  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.”

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
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 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 not more that 14 years and  assess  that  level
to be the minima 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 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  Court,  which  will  afford  sufficient  check  and
balance.

67.       It may be relevant to 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  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  (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 could similarly  empower
the Courts to impose such punishment and state that the prisoner  would  not
be entitled to remissions.  Section 32A of the NDPS Act 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  or  remissions.
      It ma

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 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 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 XXVIII of Cr.P.C., even  the  High  Court  while  considering  death
reference could pass only such sentence as is available in law.   Could  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[44],  Constitution Bench of this Court observed:-
“….The powers of this Court are no doubt very wide and 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 III of the Constitution. An  order
which this Court can make in  order  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)

In Supreme Court Bar Association v.  Union  of  India  &  another[45]  while
dealing with exercise of powers under Article 142 of  Constitution,  it  was
observed :-
“47. The plenary powers of this Court under Article 142 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  independent  of  the
statutes with a view to do  complete  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 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 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
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  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  with  the  width  of  its
amplitude, cannot be  used  to  build  a  new  edifice  where  none  existed
earlier, by ignoring express statutory provisions  dealing  with  a  subject
and thereby  to  achieve  something  indirectly  which  cannot  be  achieved
directly. Punishing a contemner advocate, while 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 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 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 432/433 of Cr.P.C. In fact, Section 433A  contemplates
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 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  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
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 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  having   stipulated   mandatory
minimum actual imprisonment at 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, it 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 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  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.
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  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 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  of  fairness
or public policy and the Judge is simply not authorised  to  legislate  law.
“If there is a law, Judges can  certainly  enforce  it,  but  Judges  cannot
create a law and seek to enforce it.” The court cannot  rewrite,  recast  or
reframe the legislation for the very good reason 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 Sushil Kumar Sharma v. Union of  India  and  others[47],
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 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  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  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  benefit  to  be
considered for remission of sentence.  By doing so, the  prisoner  would  be
condemned 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.




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  cannot
even be  inconsistent  with  the  substantive  provisions  of  the  relevant
statutory laws.  In A.R. Antulay v. R.S. Naik[48]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 (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 imprisonment means till  the  end  of  one’s
life and that by very nature the  sentence  is  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  essence,  any
such direction would increase or  expand  the  statutory  period  prescribed
under Section 433A of 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.

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, 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?





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, 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.
W. P (CRL.) Nos.185, 150, 66 OF 2014 & Crl. Appeal NO.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.

  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 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.




    ……………………………..……J.
  (Uday Umesh Lalit)


    ……………………………..……J.
  (Abhay Manohar Sapre)
New Delhi,
            December 2, 2015

                                                                           [
                                                                  Reportable
                        IN THE SUPREME COURT OF INDIA

                       CRIMINAL  ORIGINAL JURISDICTION

                     WRIT PETITION (Crl.) No. 48 OF 2014

Union of India                         …..….Petitioner(s)

                            VERSUS

V. Sriharan @ Murugan & Ors.           ……Respondent(s)

With

Writ Petition (Crl.) No.185/2014
Writ Petition (Crl.) No.150/2014
Writ Petition (Crl.) No.66/2014
Criminal Appeal No.1215/2011


Abhay Manohar 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  Justice
Uday Umesh Lalit.

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 conclusion arrived at by my Brother  Justice  Uday  Umesh  Lalit  in
answering the reference.

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 wish to add anything  more  to  what  has  been  said  by
Brother 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  can  be  supplemented
while  concurring.   I,  however,  do  not  find  any  scope  to  meet  such
eventuality in this case and therefore no useful purpose would be served  in
writing an elaborate concurring opinion.


                       ..……..................................J.
                                    [ABHAY MANOHAR SAPRE]
New Delhi;
December 02, 2015.


                                                                  Reportable
                        IN THE SUPREME COURT OF INDIA

                  CRIMINAL ORIGINAL/APPELLATE JURISDICTION


                      WRIT PETITION (CRL.)NO.48 OF 2014


UNION OF INDIA                               …    PETITIONER(S)

                 VERSUS

V. SRIHARAN @ MURUGAN AND ORS.         ...   RESPONDENT(S)


                                    WITH

                     WRIT PETITION (CRL.) NO.185 OF 2014

                                    WITH

                     WRIT PETITION (CRL.) NO.150 OF 2014

                                    WITH

                     WRIT PETITION (CRL.) NO.66 OF 2014

                                  AND WITH

                       CRIMINAL APPEAL  NO.1215 OF 2011


                                  O R D E R


            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.

                                                      ...................CJI
                                                                (H.L. DATTU)


                                          …...............................J.
                                          (FAKKIR MOHAMED IBRAHIM KALIFULLA)


                                                      ....................J.
                                                      (PINAKI CHANDRA GHOSE)


                                                       …..................J.
                                                       (ABHAY MANOHAR SAPRE)


                                                       …..................J.
                                                          (UDAY UMESH LALIT)
    NEW DELHI,
DECEMBER 02, 2015.
ITEM NO.1A               COURT NO.1               SECTION X

               S U P R E M E  C O U R T  O F  I N D I A
                       RECORD OF PROCEEDINGS

Writ Petition(Criminal)  No.  48/2014

UNION OF INDIA                                    Petitioner(s)
                                VERSUS
V. SRIHARAN @ MURUGAN & ORS.                     Respondent(s)

WITH  W.P.(Crl.) No. 185/2014

W.P.(Crl.) No. 150/2014

W.P.(Crl.) No. 66/2014

Crl.A. No. 1215/2011

Date : 02/12/2015 These petitions/appeal were called
        on for pronouncement of Judgment today.


For Petitioner(s)      Mr.Ranjit Kumar, Sol.Gen.of India
                       Ms.V.Mohana, Sr.Adv.
                       Mrs. Binu Tamta, Adv.
                       Mr. Dhruv Tamta, Adv.
                       Mr.D.L.Chidananda,Adv.
                       Ms.Movita, Adv.
                       Mr.R.K.Verma, Adv.
                       Mr. B. Krishna Prasad,Adv.
                       Ms.Sushma Suri, Adv.
                       Mr. Sinha Shrey Nikhilesh, Adv..
                       Mr.Sarthak Sachdev,Adv.
                       Mr.Toyesh Tewari, Adv.
                       Mr.Jai Sahai Endlaw,Adv.
                       Mr.Shouryendu Ray,Adv.
                       Mr. Maanav Kumar, Adv.
                       Mr.harish Kr.Khinchi,Adv.

                       Mr.Vinay Navare, Adv.
                       Ms. Abha R. Sharma,Adv.

                       Mr. Harshvir Pratap Sharma, Adv.
                       Mr. Ajay Sharma, Adv.
                       Mr.Pankaj Kumar, Adv.

                       Mr.Varinder Kumar Sharma, Adv.
                       Mr. Varun Thakur, Adv.
                       Ms. Shraddha Saran, Adv.



                       Ms. Meera Kaura Patel, Adv.
                       Mr.S.C.Patel, Adv.
                       Mr. Tejas Patel, Adv.

For Respondent(s)      Mr.Rakesh Dwivedi, Sr.Adv.
                       Mr.Kabir S.Bose, Adv.
                       Mr.Anip Sachthey, Adv.
                       Ms. Sansriti Pathak, Adv.
                       Ms. Shagun Matta, Adv.
                       Ms. Hancy Wadhwa, Adv.

R.Nos.1,2,4 to 7 Mr.Ram Jethmalani, Sr. Adv.
                       Mr.Yug Chaudhry, Adv.
                       Ms. Lata Krishnamurty, Adv.
                       Ms. Mala, Adv.
                       Mr. Anirudh Ananad, Adv.
                       Mr. Sonanadry Joud, Adv.
                       Mr. Rohit Kumar, Adv.
                       Mr. N. Chandrasekaran, Adv.
                       Mr. Sidharth Sharma, Adv.
                       Mr. S. Prabu Ramasubramanian, Adv.
                       Ms. Ragini Ahuja, Adv.
                       MR.S.Sethu Mahendran, Adv.
                       Mr.K.Paari Vendhan, Adv.
                       Mr. S. Gowthaman, Adv.

rr.3                   Mr. Rishab Sancheti, Adv.
                       Mr. K. Paari Vendhan, Adv.
                       Mr.S.Gowthaman, Adv.
                       Mr.S.Prabu Ramasubramanian, Adv.

                       Prof.Ravi Verma Kumar, Adv.Genl.
                       of State of Karnataka
                       Ms. Anitha Shenoy, Adv.
                       Ms. Aparna Appaiah, Adv.
                       Mr. E.C. Vidya Sagar, Adv.

                       Mr. Anil Kumar Mishra-I,Adv.


For Manipur      Mr.Sapam Biswajit Meitei, Adv.
                       Mr.L.Thongam, Adv.
                       Ms.B.Khushbansi,Adv.
                    Mr. Ashok Kumar Singh,Adv.

                       Mr. Balaji Srinivasan,Adv.

 For Chhattisgarh      Mr.C.D. Singh, Adv.
                       Ms.Sakshi Kakkar, Adv.
                       Mr.Atul Jha, Adv.
                       Mr.Sandeep Jha, Adv.
                       Mr. Dharmendra Kumar Sinha,Adv.

                       Mr. Gopal Singh,Adv.
                       Mr.Shreyas Jain, Adv.

For Tripura      Mr.Gopal Singh, Adv.
                       Mr.Rituraj Biswas, Adv.
                       Ms.Varsha Poddar,Adv.

                       Mr. Guntur Prabhakar,Adv.
                       Ms.Prerna Singh, Adv.

                 Mr. Kamal Mohan Gupta,Adv.
                       Mr.Pramod Kr.Singh, Adv.

                    Mr. Mishra Saurabh,Adv.
                       Ms.Vanshaja Shukla, Adv.
                       Mr.Ankit Kr.Lal, Adv.

                       Mr.Rakesh Dwivedi, Sr.Adv.
                       Mr. Subramonium Prasad, Sr. Adv.
                       Ms.Sansriti Pathak, Adv.
                       Mr. M. Yogesh Kanna,Adv.
                       Mr.Jayant Patel,Adv.
                       Mr.Ashmeet Singh, Adv.

                       Mr. A.N.S Nadkarni, Adv.Gen. for Goa
                       Mr.Siddharth Bhatnagar, Adv.
                       Mr. S.S. Rebello, Adv.
                       Mr. Anshuman Shrivastava, Adv.
                       Ms. Garima Tiwari,Adv.

Intervenor       Mr.Sanjay Parikh, Adv.
                       Mr. Pukhrambam Ramesh Kumar,Adv.
                       Mr. Sumit Kumar Vats, Adv.

                       Mr. P.V. Kovilan, Adv.
                       Mrs. Geetha Kovilan,Adv.
                       Mr. V. Vasudevan, Adv.


For Jharkhand          Mr. Ajit Kumar Sinha, Sr. Adv.
                       Mr. Tapesh Kumar Singh,Adv.
                       Mr.Shashank Singh, Adv.
                       Mohd.Waquas, Adv.

For Puducherry         Mr. V. G. Pragasam,Adv.
                       Mr.Prabu Ramasubramanian, Adv.

                       Prof.Ravi Verma Kumar, Adv.Gen., Karnataka
                       Ms. Anitha Shenoy,Adv.
                       Ms. Visruti Vijay, Adv.

                       Mr. A. Mariarputham, Adv. Gen. Sikkim
                       Ms.Aruna Mathur, Adv.
                       Mr.Yusuf Khan, Adv.
                       Mr.K.Vijay Kumar, Adv.
                     For M/s Arputham,  Aruna & Co.,Adv.

                       Ms. Vartika S. Walia, Adv.
                    for M/s Corporate Law Group,Adv.

For Andaman &
Nicobar Admn.          Mr.K.V.Jagdishvaran, Adv.
                     Ms. G. Indira,Adv.

                    Ms. Hemantika Wahi,Adv.
                       Ms.Jesal Wahi, Adv.

For U.P.               Mr.Gaurav Bhatia, AAG
                    Ms. Pragati Neekhra,Adv.
                       Mr.Utkarsh Jaiswal, Adv.
                       Mr.Gaurav Shrivastava, Adv.

For H.P.               Mr. Suryanaryana Singh, Addl. Adv. Gen.
                       Ms. Pragati Neekhra, Adv.

Applicant              Ms.Madhavi Divan, Adv.
                       Ms. Ranjeeta Rohtagi,Adv.
                    Mr.Manan Verma, Adv.

Maharashtra         Mr. Nishant Ramakantrao Katneshwarkar,Adv.
                       Mr.Arpit Rai, Adv.

                       Ms.Rachana Srivastava, Adv.
                       Mr.Ashutosh Kr.Sharma, Adv.

                       Mr.V.Madhukar, AAG
                       Ms.Anvita Cowshish, Adv.
                       Mr. Jagjit Singh Chhabra, Adv.
            Mr.Kuldip Singh, Adv.

                       Mr.Renjith B.Marar, Adv.
                       Ms.Lakshmi N.Kaimal, Adv.
                       Mr. Anas Muhamed Shamnad, R., Adv.
                       Ms.Anu Dixit Kaushik, Adv.

For Rajasthan          Mr.S.S.Shamshery, AAG.
                       Mr.Amit Sharma, Adv.
                      Mr.Ishu Prayash, Adv.
                       Ms.Spandana Reddy, Adv.
                       Ms.Ruchi Kohli, Adv.



                       Mr.V.Giri, Sr.Adv.
                       Mr.Ramesh Babu, M.R.,Adv.
                       Mr.Mohammed Sadique, T.A.,Adv.
                       Ms.Swati Setia, Adv.

                       Mr. Jogy Scaria, Adv
                       Ms.Beena Victor, Adv.
                       Mr.Robin Jacob, Adv.

                       Mr.Suryanarayana Singh, Sr.AAG
                       Ms.Pragati Neekhra, Adv.

Impleader              Mr.Ram Sankar, Adv.
                       Mr.G.Ananda Selvam, Adv.
                       Mr.R.V.Kameshwaran,Adv.

                       Mr. Manoj Kumar, Adv.
                       Mr. Aditya Narayan Singh, Adv.
                       Mr.Samir Ali Khan, Adv.

                       Mr. Atmaram N.S. Nadkarni, Adv.Gen.
                       Mr. V. Madhukar, Adv.
                       Mr. Mohit D. Ram, Adv.
                       Mr. Pradesh Dangvi, Adv.
                       Ms. Purna Bhandari, Adv.
                       Mr. S.S. Rebero, Adv.
                       Mr. Amogh Prashudesai, Adv.

                       Mr. Sushil Karanjkar, Adv.
                       Mr. Ratan Wasekar, Adv.

                       Mr. Yatendra Sharma, Adv.
                       Mr. Prashant Kumar, Adv.

                       Mr. Anil Grover, AAG
                       Mr. Satish Kumar, Adv.
                       Mr. Sanjay Visen, Adv.

For Nagaland           Ms. K. Enatoli Sema, Adv.
                       Mr. Edward Belho, Adv.
                       Mr. Amit Kumar Singh, Adv.

                       Mr.Sushil Karanjkar, Adv.
                       Mr.Dharmendra Kishor, Adv.
                       For Mr.K.N.Rai, Adv.

Date : 02/12/2015 These petitions/appeal were called on for
                  pronouncement of Judgment today.


            The reference is answered by Hon'ble the Chief  Justie,  Hon'ble
Mr.Justice Fakkir  Mohamed  Ibrahim  Kalifulla,  Hon'ble  Mr.Justice  Pinaki
Chandra  Ghose  and  Hon'ble  Mr.Justice  Abha  Manohar  Sapre  and  Hon'ble
Mr.Justice Uday Umesh Lalit by the Bench comprising  of  Hon'ble  the  Chief
Justice,  Hon'ble  Mr.Justice  Fakkir  Mohamed  Ibrahim  Kalifulla,  Hon'ble
Mr.Justice Pinaki Chandra Ghose and Hon'ble Mr.Justice  Abha  Manohar  Sapre
and Hon'ble Mr.Justice Uday Umesh Lalit, in terms  of  two  separate  signed
reportable Judgments.


(G.V.Ramana)                                      (Vinod Kulvi)
  AR-cum-PS                                  Asstt.Registrar
      (Two    separate    signed   reportable    Judgements one by
      Hon.the Chief Justice, Hon.Mr.Justice Fakkir Mohamed Ibrahim
      Kalifulla, Hon.Mr.Justice Pinaki Chandra Ghose and the other
      by Hon.Mr.Justice Abhay Manohar Sapre and Hon.Mr.Justice Uday
      Umesh Lalit and a separate short note by Hon'ble Mr.Jusitce
      Abhay Manohar Sapre, agreeing with the view of the Hon'ble
      Mr.Justice Uday Umesh Lalit is also separately attached
      herewith are placed on the file)
-----------------------
[1]






        2014(11) SCC 1
[2]    1999 (5) SCC 253
[3]     Suthendraraja  alias Suthenthira Raja alias Santhan and others vs.
State through DSP/CBI, SIT, CHENNAI (1999) 9 SCC 323
[4]      L.K. Venkat v. Union of India and others (2012) 5 SCC 292
[5]    2014 (4) SCC 242

[6]     (2008) 13 SCC 767
[7]     (2003)4 SCC 1
[8]    (1961) 1 SCR 497 at 516
[9]      (1989) 1 SCC 204 at 213

[10]    (2006) 8 SCC 161
[11]     Constituent Assembly Debate Vol. 7 Page 1129
[12]    1955 (2) SCR 225
[13]   (1976) 3 SCC 470
[14]   (1976) 3 SCC 616

[15]   (1982) 2 SCC 177
[16]    (2004) 1 SCC 616
[17]   (1974) 3 SCC 531
[18]     (2010) 5 SCC 246
[19]    (2004) 9 SCC 580
[20]    (1994) 3 SCC 569
[21]   (1981)1 SCC 106
[22]   (2013)2 SCC 452
[23]   (2013)3 SCC 294
[24]   (2013) 13 SCC 1
[25]   (2001) 3 SCC 170
[26]   (2004) 4 SCC 714
[27]   (2011) 5  SCC 341
[28]   (2013) 3 SCC 117
[29]   (1993)4 SCC 441
[30]   (2013) 3 SCC 1
[31]   (2010) 3 SCC 571
[32]   (2010) 5 SCC 1
[33]    (1976) 1 SCC 157
[34]   (2013) 14 SCC 24
[35]   (2010) 4 SCC 216
[36]   (2003) 7 SCC 121
[37]   (2014) 3 SCC 1
[38]   (1961) 3 SCR 440
[39]   2007(13) SCC 606
[40]   (2000) 2 SCC 595
[41]    (1979) 3 SCC 745
[42]    (1979) 3 SCC 646
[43]    AIR 2015 SC 3577
[44]    AIR 1963 SC 996
[45]   1998 (4) SCC 409
[46]   2014(11) SCC 477
[47]    (2005) 6 SCC 281
[48]     (1988) 2 SCC 602

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