2022 Supreme(SC) 473

SUPREME COURT OF INDIA
L. NAGESWARA RAO, B.R. GAVAI, A.S. BOPANNA, JJ.
A.G. Perarivalan – Appellant
Versus
State, through Superintendent of Police CBI/SIT/MMDA, Chennai – Respondent
Criminal Appeal Nos. 833-834, 835 of 2022, SLP (Crl.) Nos. 10039-10040 of 2016, 2363 of 2021
Decided On : 18-05-2022

IMPORTANT POINT
Governor is formal head and sole repository of executive power but is incapable of acting except on, and according to, advice of his Council of Ministers – Advice of State Cabinet is binding on Governor in matters relating to commutation / remission of sentences under Article 161.

Headnote:

(A) Constitution of India – Article 161 – Power of Governor to commute sentence – Rajiv Gandhi assassination case – Governor occupies the position of head of the executive in the State but it is virtually Council of Ministers in each State that carries on executive Government – It is satisfaction of Council of Ministers on whose aid and advice President or Governor generally exercises all his powers and functions – Even though Governor may be authorised to exercise some functions, under different provisions of Constitution, same are required to be exercised only on the basis of aid and advice tendered to him under Article 163, unless Governor has been expressly authorised, by or under a constitutional provision, to discharge function concerned, in his own discretion – Governor is formal head and sole repository of executive power but is incapable of acting except on, and according to, advice of his Council of Ministers – Advice of State Cabinet is binding on Governor in matters relating to commutation / remission of sentences under Article 161 – In instant case, Governor ought not to have sent recommendation made by State Cabinet to President of India – Such action is contrary to constitutional scheme – Apex Court has power of judicial review of orders of Governor under Article 161 which can be impugned on certain grounds – Non-exercise of power under Article 161 is not immune from judicial review. (Paras 14, 15, 16, 17, 19, 20 and 29)

(B) Criminal Procedure Code, 1973 – Section 435 – Constitution of India – Article 142 – Remission of sentence of life imprisonment – Rajiv Gandhi assassination case – Insofar as offences under Section 302, IPC are concerned, in absence of any specific provision under Constitution or under law made by Parliament expressly conferring executive power on Union, executive power of State would extend, irrespective of whether subject-matter of Section 302 of IPC is considered to be covered by an Entry in List II or an Entry in List III of Seventh Schedule – Appellant was 19 years of age at the time of his arrest and has been incarcerated for 32 years, out of which he has spent 16 years on death row and 29 years in solitary confinement – There has been no complaint relating to his conduct in jail – On two occasions that Appellant had been released on parole, there had been no complaint regarding his conduct or breach of any condition of release – Medical records, filed on behalf of Appellant, show that he is suffering from chronic ailments – Apart from his good behaviour in jail, Appellant has also educated himself and successfully completed his +2 exams, an undergraduate degree, a postgraduate degree, a diploma and eight certification courses – Given that his petition under Article 161 remained pending for two and a half years following recommendation of State Cabinet for remission of his sentence and continues to remain pending for over a year since reference by Governor, it is not appropriate to remand the matter for Governor’s consideration – In absence of any other disqualification and in exceptional facts and circumstances of this case, in exercise of power under Article 142 of Constitution, Appellant is deemed to have served sentence – Appellant, who is on bail, is set at liberty forthwith. (Paras 26, 28 and 29)

Facts of the case:

Appellant is accused No.18 in Crime No. 329 of 1991 registered at Sriperumbudur Police Station for assassination of Shri Rajeev Gandhi, former Prime Minister of India, on 21.05.1991. The Appellant was convicted for offences under Indian Penal Code, 1860, Arms Act, 1951, Explosive Substances Act, 1908, Passport Act, 1967, Foreigners Act, 1946, Indian Wireless Telegraphy Act, 1933 and Terrorist and Disruptive Activities (Prevention) Act, 1987 (‘TADA’). He was sentenced to death by designated TADA Court. This Court, by a judgment dated 11.05.1999, upheld conviction and sentence imposed on the Appellant. However, the conviction and sentence under the TADA were set aside. The review petition filed by the Appellant was dismissed by an order dated 08.10.1999. The Appellant, along with three others, filed mercy petitions before Governor of Tamil Nadu under Article 161 of Constitution of India, which were rejected on 27.10.1999. The mercy petition of the Appellant was reconsidered by the Governor, pursuant to an order passed by the High Court of Tamil Nadu, and was rejected again on 25.04.2000. The Appellant filed a mercy petition before the President of India under Article 72 of the Constitution, which was also rejected on 12.08.2011. Aggrieved thereby, a writ petition was filed in the High Court of Madras. The said writ petition filed by the Appellant before the High Court of Madras was transferred to this Court by an order dated 01.05.2012. Thereafter, the death sentence of the Appellant was commuted to imprisonment for life by this Court on 18.02.2014.

Only point that requires to be considered in these Appeals is the correctness of reference made by Governor to the President of India on 25.01.2021, without taking a decision on the recommendation made by State Cabinet on remission of the sentence of the Appellant.

Findings of Court:

Taking into account Appellant’s prolonged period of incarceration, his satisfactory conduct in jail as well as during parole, chronic ailments from his medical records, his educational qualifications acquired during incarceration and the pendency of his petition under Article 161 for two and a half years after recommendation of the State Cabinet, Court do not consider it fit to remand the matter for the Governor’s consideration. In exercise of our power under Article 142 of the Constitution, we direct that the Appellant is deemed to have served the sentence in connection with Crime No. 329 of 1991. The Appellant, who is already on bail, is set at liberty forthwith.

Result : Appeals disposed of with directions.