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SUPREME COURT OF INDIA
P. SATHASIVAM, CJI., RANJAN GOGOI, N.V. RAMANA, JJ.
Union of India – Appellant
Versus
V. Sriharan @ Murugan & Others – Respondents
Writ Petition (Crl.) No. 48 of 2014 With Writ Petition (Crl.) No. 105 of 2008, Crl. M.P. No.4622 of 2014 In T.C. (Crl.) No.1 of 2012, Crl. M.P.No. 4623 of 2014 In T.C. (Crl.) No. 2 of 2012, Crl. M.P. No. 4624 of 2014 In T.C. (Crl.) No. 3 of 2012
Decided On : 25-04-2014
(b) Constitution of India – Article 136 – Power of Supreme Court to award imprisonment for life without remission – Correctness of Swamy Shraddananda – Not permissible for the present Bench being a coordinate Bench – Further, view in Bhagirath also has to be examined – Matter referred to five Judges’ Bench. (Para 42)
(2008) 13 SCC 767; (1985) 2 SCC 580 – Referred
(c) Constitution of India – Article 72/161 and 32 – Death sentence commuted to life imprisonment by exercise of Executive power under Article 72/161 or Judicial power under Article 32 – Whether subject to further remission by State – Question raised for the first time – Wide ramifications – Matter referred to Constitution Bench. (Para 45)
(d) Constitution of India – Article 145(3) – Question who is appropriate Government in terms of section 432(7), Cr PC – Also what is meant by ‘consultation’ and whether it can mean ‘concurrence’ in terms of section 435(1), CrPC – Questions referred to Constitution Bench. (Para 46)
(1994) 3 SCC 1; (2010) 5 SCC 1; (2013) 3 SCC 294; (2013) 3 SCC 1; (1974) 3 SCC 531; (1976) 3 SCC 470; (1976) 3 SCC 616; AIR 1950 SC 124; (2011) 5 SCC 341; (2001) 3 SCC 170; (2003) 4 SCC 714; (2013) 3 SCC 117; (1998) 4 SCC 409; (2014) 2 SCC 532; (1981) Supp SCC 87; (1993) 4 SCC 441 – Referred
Facts of the case:
In this writ petition the Union of India has prayed for quashing of letter dated 19.02.2014, issued by the Chief Secretary, Government of Tamil Nadu to the Secretary, Government of India proposing to remit the sentence of life imprisonment and to release Respondent Nos. 1-7 who were convicted in the Rajiv Gandhi Assassination Case in pursuance of commutation of death sentence of Respondent Nos. 1-3 by the Supreme Court on 18.02.2014 in Transferred Case Nos. 1-3 of 2012 titled V. Sriharan @ Murugan & Ors. vs. Union of India & Ors. 2014 (2) SCALE 505.
Finding of the Court:
Questions raised in Writ Petition (Crl.) No. 48 of 2014 need to be referred to a five Judges’ Bench and a Constitution Bench.
Result: Questions in Writ Petition (Crl.) No. 48 of 2014 referred to Constitution Bench.
Writ Petition (Crl.) No. 105 of 2008 is dismissed as not pressed.
Crl. M.P. Nos. 4622, 4623 and 4624 of 2014 in T.C.(Crl.) Nos. 1, 2 and 3 of 2012 respectively are dismissed.
Key Points: - The case involves a dispute over whether the Union of India or the State of Tamil Nadu is the "appropriate Government" for remission in a case investigated by the CBI under Section 432(7) of CrPC (!) (!) . - Several arguments were raised on whether life imprisonment substituted for death penalty can be subjected to remission by the executive, tracing back to the principles in Swamy Shraddananda’s case (!) (!) . - The Court framed questions for the Constitution Bench regarding whether "consultation" under Section 435(1) implies "concurrence" (!) . - The Court noted the need for a Constitution Bench to interpret the scope of executive power of the Union and the State under Articles 73, 162, and entry 1 of List III (!) (!) (!) . - It was submitted that once a death sentence is commuted to life imprisonment by the Court, further remission by the executive may not be permissible (!) . - The constitutional and statutory provisions on the extent of executive power of the Union and the State were highlighted to clarify the boundaries of authority in remission cases (!) (!) . - The matter was referred to a Constitution Bench due to conflicting views among earlier benches on the correctness of Swamy Shraddananda’s reasoning (!) . - Questions of interpretation regarding the hierarchy of executive power and the effect of a Court-ordered commutation on subsequent remission powers were highlighted for determination (!) (!) .
JUDGMENT
P. Sathasivam, CJI. –
Writ Petition (Crl.) No. 48 of 2014
1) This writ petition, under Article 32 of the Constitution of India, has been filed by the Union of India praying for quashing of 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 proposes to remit the sentence of life imprisonment and to release Respondent Nos. 1-7 herein who were convicted in the Rajiv Gandhi Assassination Case in pursuance of commutation of death sentence of Respondent Nos. 1-3 herein by this Court on 18.02.2014 in Transferred Case Nos. 1-3 of 2012 titled V. Sriharan @ Murugan & Ors. vs. Union of India & Ors. 2014 (2) SCALE 505.
Writ Petition (Crl.) No. 105 of 2008
2) In the above writ petition, the petitioner who has been arrayed as Respondent No. 6 in Writ Petition (Crl.) No. 48 of 2014 (filed by the Union of India) prays for quashing of G.O. No. 873 dated 14.09.2006, G.O. No. 671 dated 10.05.2007 and G.O. (D) No. 891 dated 18.07.2007 issued by the State of Tamil Nadu, Home Department as the same are unconstitutional. In effect, the petitioner prayed for remission of his sentence, which was rejected by the Advisory Board.
Criminal M.P. Nos. 4622-24 of 2014
3) When the State of Tamil Nadu, in their letter dated 19.02.2014, sought for views of the Union of India for the release of Respondent Nos. 1-7 in Writ Petition (Criminal) No. 48 of 2014 within three days from the date of receipt of the same, the Union of India filed the above criminal misc. petitions before this Court praying for restraining the State Government from passing any order of remission and releasing them from prison.
Factual Background:
4) Pursuant to the judgment of this Court dated 18.02.2014 in V. Sriharan @ Murugan (supra), the Government of Tamil Nadu took a decision to grant remission to Respondent Nos. 1 to 7. Accordingly, the Government of Tamil Nadu sent a letter dated 19.02.2014 to the Secretary to the Government of India, Ministry of Home Affairs, stating that it proposes to remit the sentence of life imprisonment on V. Sriharan @ Murugan, T. Suthendraraja @ Santhan and A.G. Perarivalan @ Arivu and release them. In that letter, it was further stated that four other persons, namely, Jayakumar, Robert Payas, S. Nalini and P. Ravichandran, convicted in the same assassination would also procure similar remission. Besides, it was asserted in the letter that since the crime was investigated by the Central Bureau of Investigation (CBI) and as per Section 435 of the Code of Criminal Procedure, 1973 (in short “the Code”), the State Government, while exercising its power under Section 432 of the Code, must act after consultation with the Central Government, accordingly, it requested to indicate the views of the Union of India within three days on the proposal to release the seven persons mentioned above.
5) Accordingly, in these matters, we are called upon to decide the legitimacy of the proposal of the State Government to release Respondent Nos. 1 to 7, who are facing life sentence. For the purpose of disposal of the issue in question, we reiterate the relevant provisions. Sections 432 and 435 of the Code read 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 lime, 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 ce
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