Aapka Consultant Judgment Series- In this series, we are providing case analysis of Landmark Judgments of Hon’ble Supreme Court of India.
Union of India v. V. Sriharan @ Murugan & Ors.
Writ Petition (Crl.) No. 48 of 2014
JUDGES: H. L. Dattu, Fakkir Mohamed Ibrahim Kalifulla, Pinaki Chandra Ghose, Abhay Manohar Sapre and Uday Umesh Lalit
Date of Decision: 02-12-2015
FACTS:-
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 respondents 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.
ISSUE:-
Following issues have come up before this Court for consideration:
- 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 the case of Swamy Shraddananda, 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 Page 3 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”?
JUDGMENT:-
The Supreme Court, for the first issue, has hold the view 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. The Court further hold the view that in Swamy Shraddananda’s case 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 the Court answer the said question in the affirmative. The Court overruled the case of Sangeet and Anr. v. State of Haryana [2013 (2) SCC 452] wherein it was held 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.
The Court, for the second issue, has 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, it has already stated 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.
The Court, for the third, fourth and fifth issue, has held that 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 v. The Superintendent of Central Jail, Rajahmundry & Ors. [AIR 1974 SC 31] 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.
The Court, for the sixth issue, has held 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. Also such a procedure to be followed under Section 432(2) is mandatory.
The Court, for the final issue, has held that the 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”.
HELD:-
A Constitution Bench of the Supreme Court has held that 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, then the Appropriate Government would be the Central Government for exercising its power of remission, suspension as well as commutation as provided under Section 432 and 433 of the Criminal Procedure Code. In all other cases, if the sentence order is passed by the Court within the territorial jurisdiction of the concerned State, then, the concerned State Government would be the Appropriate Government. Also, 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 prescribing 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.
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