SUPREME COURT OF INDIA
H.L. Dattu, Fakkir Mohamed Ibrahim Kalifulla, Pinaki Chandra Ghose, Abhay Manohar Sapre and Uday Umesh Lalit, JJ.
Union of India —Petitioner
versus
V. Sriharan @ Murugan & Ors. —Respondents
Writ Petition (Crl.) Nos.48, 185, 150 & 66 of 2014, Criminal Appeal No.1215 of 2011
Decided on 2.12.2015

IMPORTANT POINTS
(1) 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.
(2) 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. This category can be put beyond application of remission.
(3) 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.
(4) As far as the application of Article 32 of the Constitution by this Court is concerned, it is held that the
(5) Powers under Sections 432 and 433 are to be exercised by the Appropriate Government statutorily and it is not for Supreme Court to exercise the said power under Article 32.
(6) 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. 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.
(7) 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.
(8) In 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”.

Headnote:Per Fakkir Mohamed Ibrahim Kalifulla, J. (Majority view)

       (a) Constitution of India – Article 32 – Maintainability – Reference to Constitution Bench – Questions referred involving 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, 1860 and Code of Criminal Procedure, 1973 – Serious public interest arising in the writ petition – Not desirable or justified to reject the reference on narrow technical ground of maintainability of the writ petition – Writ petition filed by Union of India is maintainable. (Paras 5, 163)

       (b) Constitution of India – Article 72(1)(a) and (b), and 71(3) r/w Article 73 – Article 71(1) confers the President with powers 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 – Conjoint reading of Article 72(1)(a) and (3) along with the proviso to Article 73(1)(a) – Wherever the Constitution or a law made by the Parliament expressly 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. (Paras 11, 14)

       (c) Constitution of India – Articles 161 and 162 – Powers of Governor to grant pardon etc. – Almost identical to powers of President under Article 72 – Although not to fullest extent – Exercise of Executive Power of the State by the Governor under Article 162 is restricted to 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 – On the other hand, Executive Power of Union under Article 73(1)(a) would also extend in any State to matters with respect to which the Legislature of the State has also powers to make laws; only if the Constitution expressly provides for it or the Parliament makes a law in that regard – In other words, in absence of any such express Constitutional provision or any law made by the Parliament in that regard, the Executive Power of the Union stipulated in Article 73(1)(a), would not be extended to any State to matters with respect to which the Legislature of the State has also powers to make laws. (Paras 15, 16, 17, 18)

       (d) Constitution of India – Article 72, 73, 161 and 162 – Extends Executive powers of Union in matters in which the State legislature as well as the Parliament have powers to make law – Thus limiting and controlling Executive powers of the State to the extent of power of Union expressly conferred by Constitution or law made by Parliament. (Paras 20, 23, 24)

       (e) Constitution of India – Articles 53 and 156; and Articles123, 213 and 239B – Powers under Articles 123, 213 and 239B are different than those under Articles 53 and 156 – While the powers under Articles 53 and 156 are Executive or administrative powers, those under Articles 123, 213 and 239B are at par with legislative actions. (Para 25)

       (1985) 1 SCC 523; (1985) 3 SCC 198 – Relied upon

       (f) Constitution of India – Article 247 and 73(1)(a) – Article 247 empowering Central Government to make law for establishment of additional courts – However unless executive power of Union is expressly extended in Article 247 or specific statute for making appointments of judges to such additional courts, it cannot do so invoking Proviso to Article 73(1)(a) – Articles 246(4), 245(2), 249, 250, 251, 251, 254, 256, 277, 285, 289 and 298 referred. (Paras 26, 27, 28, 29, 30, 32, 33, 34)

       (g) Constitution of India – Articles 72, 73, 161 and 162 – Executive Power of the State by and large susceptible to being controlled by the Executive Power of the Union under very many circumstances specifically warranting for such control – Not vice versa – Articles 256, 257, 258, 285 and 286; and Articles 246(2), 249, 250, 277, 286 and 369 referred. (Paras 40, 41, 42)

       (h) Indian Penal Code, 1860 – Sections 45 and 53 r/w section 432, Code of Criminal Procedure, 1873 – Life – Imprisonment for life u/s 53 r/w section 45 only means entirety of life – This would be subject to remissions validly granted under Articles 72 and 161 of the Constitution and section 432 of CrPC. (Paras 57, 61)

       (1961) 3 SCR 440; (1981) 1 SCR 1196; AIR 1974 SC 147; (1976) 3 SCC 470; (1984) 1 SCC 31; (1991) 3 SCC 498; (2001) 4 SCC 458; (2008) 13 SCC 767 – Relied upon

       (i) Imprisonment for life – Remission – Two types – Earned remission under Prison rules for good behaviour and, – Remission under section 432, Code of Criminal Procedure, 1973 – Credit for earned remission available only when appropriate government grants remission of substantive sentence u/s 432 – Not otherwise. (Para 62)

       (j) Sentencing – Death sentence – When substituted by life sentence – Would only mean rest of one’s life span. (Para 76)

       (1983) 3 SCC 470; (1980) 2 SCC 684; (1973) 1 SCC 20; (2007) 12 SCC 230 – Relied upon

       (1979) 3 SCC 745; (2001) 4 SCC 458; (1976) 3 SCC 470; (1991) 3 SCC 498; (2001) 6 SCC 296; (1985) 2 SCC 580; (2002) 2 SCC 35; (2002) 6 SCC 686; (2005) 7 SCC 417; (2001) 10 SCC 109; (2003) 8 SCC 461; (1992) 4 SCC 172 – Referred

       (k) Code of Criminal Procedure, 1973 – Section 432 and Article 72 and 161, Constitution of India – Constitutional power of the President or the Governor and statutory power of State for remission of sentence – Though look akin, are different – While constitutional powers are rather untouchable except in exceptional circumstances, statutory powers must yield to judicial pronouncements – When the Court imposes a punishment restraining any remission, State would not be entitled to nullify it by acting to the contrary under statutory powers. (Para 78)

       (l) Code of Criminal Procedure, 1973 – Section 433-A – Prescribing a minimum sentence – Does not restrict imposition of higher sentence – Not an impediment in imposing imprisonment for any period beyond 14 years and upto the end of one’s life span. (Para 79)

       (m) Sentencing – Pardon and remission vis-à-vis judicial pronouncement – Distinction – When an appellate or revisional court reduces the sentence reversing or modifying the lower court verdict, the sentence is reduced – On the other hand pardon or remission shortens the execution of the sentence – The sentence remains the same as pronounced by the Court. (Para 80)

       (1989) 1 SCC 204 – Relied upon

       (n) Sentencing – Life imprisonment – life means entire span of one’s life – No statute prohibits imposition of imprisonment for any specific period within the life span of an accused – Concept of ray of hope cannot be applied in cases of hardened, heartless offenders (Paras 87, 88)

       AIR 1980 SC 898; AIR 1983 SC 957; (2009) 6 SCC 498; (2007) 12 SCC 230; (2008) 4 SCC 434; (2011) 3 SCC 85; (2006) 12 SCC 254; (2010) 9 SCC 1; AIR 1997 SC 610; AIR 2015 SC 3577; (2005) 7 SCC 417; (2011) 2 SCC 764; (2012) 8 SCC 537 – Relied upon

       (o) Criminal law – Special category of sentence – Instead of death sentence – Imprisonment for life for a term exceeding 14 years and putting it beyond application of remission – Whether valid – Held, well founded – Such a special category can be validly put in place. (Para 105)

       (2013) 2 SCC 452 – Overruled

       (p) Criminal law – Imposition of death penalty or life imprisonment – Substantively provided for in Indian Penal Code – Procedural part prescribed in Code of Criminal Procedure – One does not conflict with the other. (Para 100)

       (q) Code of Criminal Procedure, 1973 – Section 432/433 – Remission – Whether can be granted even after exercise of powers under Article 72 by the President or under 161 by the Governor or the Supreme Court under Article 32 – Power of remission vests in the State – Court cannot remit the sentence – Power under Article 32 of the Constitution to commute the sentence is independent of the Executive Power of the State under CrPC – Appropriate Government can consider and grant remission under Sections 432 and 433 CrPC even after exercise of power under Article 72 by the President and under Article 161 by the Governor. (Paras 108, 109, 110)

       (2014) 4 SCC 242; (1996) 5 SCC 495; (2002) 7 SCC 222; (2003) 7 SCC 121 – Relied upon

       (r) Indian Penal Code, 1860 – Section 55A r/w sections 432 and 433, Code of Criminal Procedure, 1973– Appropriate Government – Where the imposed 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’ – Similarly where the sentence is imposed under any law falling within the proviso to Article 73(1)(a) of the Constitution, then again, the Appropriate Government would be the Centre Government – In all other cases, if the sentence order is passed within the territorial jurisdiction of the concerned State, the concerned State Government would be the Appropriate Government – In case of co-extensive power of Centre and the State – Sentence under any law relating to which the Executive Power of the Union extends, like TADA – Central Government would be appropriate Government – Similarly, Offences u/s 489(A) to 489(D) of IPC fall under concurrent list, for offences involving currency notes and Bank notes, central Government would be the appropriate Government – Even if State has co-extensive power to enact law on a subject but specific Executive power is conferred on the Centre under Articles 248 to 252, Union Government will get primacy to the exclusion of State – If both the Centre and the State have the authority and make laws on a subject conferring power on the Centre and the State respectively, power of State would be controlled and limited by the central legislation. (Paras 129, 130, 131, 13, 134)

       (1976) 3 SCC 470; (1976) 3 SCC 616; (1982) 2 SCC 177; (2004) 1 SCC 616; AIR 1974 SC 31 – Relied upon

       (s) Code of Criminal Procedure, 1973 – Section 432(1) and (2) – Section 432(1) only prescribes extent of power, not the procedure – No requirement of any application does not mean that the power can be exercised suo motu – Section 432(2), on the other hand, prescribers procedure when an application for remission of sentence is made – Safeguard of consultation with the presiding officer of the concerned court u/s 432(2) should be sine qua non for exercise of power u/s 432(1) – Held, suo motu power of remission cannot be exercised under Section 432(1); it can only be initiated based on an application of the persons convicted as provided under Section 432(2); and ultimate order of suspension or remission should be guided by the opinion to be rendered by the Presiding Officer of the concerned Court. (Paras 141, 142, 143)

       (t) Code of Criminal Procedure, 1973 – Section 435(1) – Use of word ‘shall’ – Provision is mandatory – Sub-section (1) using expression ‘consultation’ and sub-section (2) using ‘concurrence’ – Situations covered by sub-clauses (a) to (c) of Section 435(1) falling within the jurisdiction of Central Government – Central Government will assume primacy – “Consultation” should be held as the requirement of “Concurrence”. (Para 161)

       (1993) 4 SCC 441; (2013) 3 SCC 1; (2009) 7 SCC 1 – Relied upon

       (2010) 5 SCC 1; (2013) 3 SCC 117; (1999) 5 SCC 253 – Referred

       (2004) 4 SCC 714; (1994) 3 SCC 1 – Distinguished

       Per Uday Umesh Lalit, J. (Minority view; Abhay Manohar Sapre, J. concurring)

       (u) Constitution of India – Article 32 – Maintainability of writ petition – Preliminary objection raised – Petition already entertained, notices issued, applications for impleadment entertained and interim orders granted – Not appropriate to consider such preliminary objections at this stage.

       (2003)4 SCC 1 – Relied upon

       (v) Constitution of India – Articles 72 and 161 – A person sentenced to death for any offence under any law relating to a matter to which the executive power of the State extends – Can approach either the Governor under Article 161 or the President under Article 72(1)(c) or both – Powers of the President and the Governor overlap to this limited extent. (Para 15)

       (1961) 1 SCR 497; (1989) 1 SCC 204; (2006) 8 SCC 161 – Relied upon

       75 Lawyers Ed. 354 – Referred

       (w) Constitution of India – Articles 73 and 162 and Section 55A, IPC and sections 432 to 435, CrPC – Executive power of the Union absolute in matters of Article 73(1)(b) – Article 73(1)(a) extends power of the Union to matters in respect of which Parliament has power to make law, i.e., List I of the 7th Schedule – Power of Union does not extend to matters in respect of which State also has power to make laws, i.e., List III of 7th Schedule – However, Proviso to Article 73 provides that the union shall have Executive powers in such matters as in concurrent list also if expressly provided in the Constitution or the laws made by the Parliament – Executive power of the Union or the State is offence specific – Hence both shall be appropriate Governments in respect of respective offence or offences to which the executive power of the respective government extends. (Paras 18, 20, 23, 24)

       (1955) 2 SCR 225; (1976) 3 SCC 470; (1976) 3 SCC 616; (1982) 2 SCC 177; (2004) 1 SCC 616 – Relied upon

       (x) Constitution of India – Articles 73 and 162 – Appropriate Government – It is the offence, not the law, which determines the question as to which Government is the appropriate Government – Thus though IPC is an enactment under List III of 7 th Schedule, offence relating to currency notes and Bank notes u/s 489-A to 489-D IPC fall under Executive power of Central Government – Hence for these offences Central Government would be the appropriate Government. (Para 27)

       (1974) 3 SCC 531; (2010) 5 SCC 246; (2004) 9 SCC 580; (1994) 3 SCC 569 – Relied upon

       (y) Constitution of India – Article 161 – Section 302, Indian Penal Code, 1860 – Offence u/s 302 directly related to “public order” under Entry 1 of List II of the 7th Schedule to the Constitution – In the exclusive domain of the State Government – State Government would be the appropriate Government – Even though offence u/s 302 may be relatable to Entry 1 of List III, in absence of any specific provision in the Constitution or in the law made by Parliament, State would have exclusive Executive power – Consequently, State Government would be the appropriate Government. (Para 29)

       (z) Criminal law – Sentence – Remission – Two types – Earned remission – Remission for ‘good behaviour’ – Depends upon Jail manual or the State policy – Accumulates to credit of prisoner – Without any specific order by appropriate Government – Remission u/s 432 CrPC on the other hand requires an express order by the appropriate Government – The decision to grant remission u/s 432 must be well informed, reasonable and fair to all concerned – Suo motu exercise of power of remission u/s 432(1) – Not permissible – The power can be exercised only in accordance with the procedure under Section 432(2). (Paras 32, 34)

       (2008) 13 SCC 767; (1981)1 SCC 106; (2013)2 SCC 452; (2013)3 SCC 294; (2013) 13 SCC 1 – Relied upon

       (aa) Code of Criminal Procedure, 1973 – Section 435(1), 432 and 433 – Power u/d 432 and 433 – Cannot be exercised except after consultation with the Central Government – Section 435(1) mandatory – Further when a case is handed over to Central Bureau of Investigation (CBI) all decisions are taken by the CBI – State has no role to play – In such cases the Central Government controlling the CBI would be the appropriate Government – Merely because the State Government happens to be the appropriate Government in respect of such offences, it cannot exercise the power u/s 432 and 433 on its own – The expression “consultation” should be read as concurrence – 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. (Para 40)

       (2001) 3 SCC 170; (2004) 4 SCC 714; (2011) 5 SCC 341; (2013) 3 SCC 117; (1993)4 SCC 441; (2013) 3 SCC 1; (2010) 3 SCC 571; (2010) 5 SCC 1 – Referred

       (ab) Constitution of India – Articles 72 and 161; and sections 432 and 433, Code of Criminal Procedure, 1973 – These constitutional and statutory powers though co-extensive differ in source, substance and strength is different – They are not identical – The statutory power can be exercised even after exercise of the constitutional power subject to the minimum sentence prescribed. (Paras 43, 44, 46)

       (1981)1 SCC 106; (1976) 1 SCC 157; (2013) 14 SCC 24; (2010) 4 SCC 216; (1989) 1 SCC 204; (2003) 7 SCC 121 – Relied upon

       (ac) Code of Criminal Procedure, 1973 – Section 432/433 r/w Articles 72/161 and 32, Constitution of India – Mercy petitions of respondents rejected under Articles 72 and 161 – Power u/s 432/433 might not be exercised on same set of circumstances – Thereafter Supreme court commuting death sentence to life imprisonment on ground of delay in disposal of mercy petitions – Respondents thereafter serving 23 years of imprisonment – Circumstances having changed, power u/s 432/433 could be exercised – Commutation under Article 32 and remission u/s 432/433 are distinct and independent, of different nature and based on different premises. (Para 48)

       (2014) 3 SCC 1 227 – Referred

       (ad) Code of Criminal Procedure, 1973 – Section 432 – Earned remission – Can be claimed only when term of imprisonment is for fixed period – 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 – The authority would be obliged to consider the application reasonably – Sections 53 and 45, Indian Penal Code, 1860. (Para 50, 54)

       (1961) 3 SCR 440; (1981)1 SCC 106; (2007) 13 SCC 606; (2000) 2 SCC 595 – Relied upon

       (ae) Sentencing – Death sentence or life imprisonment for 14 years – When death sentence is too harsh and imprisonment for 14 years is too inadequate – Need for new category – Sentence of imprisonment for whole life, without remission as propounded in Shraddananda (2) – Validity – Such punishment not within section 302 – Hence not available to trial court or High Court – Constitution of India – Article 142 – Introducing new punishment would amount to legislation – Not permissible – Courts cannot and ought not deny to a prisoner the benefit to be considered for remission of sentence – Order passed in exercise of power under Article 142 of the Constitution of India must be consistent with the fundamental rights and substantive provisions of the relevant statutory laws – A statutory right of approaching the authority under Section 432/433 Cr.P.C. cannot be denied under the orders of the Court – Not open to the Court to make any special category of sentence in substitution of death penalty and put that category beyond application of remission – Also not permissible to stipulate any mandatory period of actual imprisonment inconsistent with Section 433A Cr. P.C. (Paras 71, 73, 74, 75)

       (2008) 13 SCC 767; (1979) 3 SCC 745; (1979) 3 SCC 646 – Relied upon

       (2014) 4 SCC 242; (2013) 2 SCC 452; (1981)1 SCC 106; (1979) 3 SCC 745; (1989) 1 SCC 204; (2006) 8 SCC 161 – Referred

       Facts of the case:

        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. 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?

        52.2 Whether the “Appropriate Government” is permitted to exercise the power of remission under Section 432/433 of the Code after the parallel power has been exercised by the President under Article 72 or the Governor under Article 161 or by this Court in its 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-clause (2) of the same Section is mandatory or not?

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