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)
-----------------------
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