/2022 INSC 0391/ Reportable IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION Criminal Appeal Nos. 833-834 of 2022 (@ SLP (Crl.) Nos. 10039-10040 of 2016) (@ SLP (Crl.) No.2363 of 2021) 1951, the Explosive Substances Act, 1908, the Passport Act, 1967, the Foreigners Act, 1946, the Indian Wireless 1 | P a g e Telegraphy Act, 1933 and the Terrorist and Disruptive Activities (Prevention) Act, 1987 (for short, ‘TADA’). He was sentenced to death by the designated TADA Court. This Court, by a judgment dated 11.05.1999, upheld the conviction and sentence imposed on the Appellant. However, the conviction and sentence under the TADA were along with three others, filed mercy petitions before the Governor of Tamil Nadu under Article 161 of the Constitution 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. 2 | P a g e 2. according to which the Central Government was required to be consulted, as the case had been investigated by the Central Bureau of Investigation (CBI). The Union of India immediately filed criminal miscellaneous petitions in the cases disposed of by this Court on 18.02.2014, commuting the sentence imposed on the Appellant to life imprisonment. were dismissed. remission of the sentence imposed on the Appellant and 3 | P a g e some others. The writ petition was referred to a Constitution Bench of this Court by order dated 25.04.2014, afterIndia v. Sriharan 1 . 4. taking note of the fact that a petition had been filed by the Appellant under Article 161 of the Constitution and giving liberty to the authority concerned to dispose of the said petition as deemed fit. A resolution was passed by the Tamil Nadu Cabinet on 09.09.2018, recommending the release of the Appellant, which was sent to the Governor. Chennai praying for effective monitoring of the pending investigation of the assassination. The said petition was dismissed by the TADA Court on 10.12.2013, against which 1 (2016) 7 SCC 1 4 | P a g e the Appellant approached the High Court under Section 482, CrPC, by filing a criminal original petition. Another criminal original petition was filed seeking direction to the CBI to complete the pending investigation expeditiously and to file a status report before the High Court once every two months. The High Court dismissed both the petitions by separate orders on 06.03.2015, being of the opinion that the Appellant should have approached the Supreme Court. These Appeals have been filed against the said orders passed by the High Court on 06.03.2015. Notice was issued by this Court in Crl. M.P. No. 118421 of 2017 filed by the Appellant seeking suspension of sentence. 6. During the pendency of these Appeals, this Court was informed that no decision has been taken by the Governor on the resolution passed by the Tamil Nadu Cabinet on 09.09.2018, recommending release of the Appellant. On 11.02.2020, this Court directed the Additional Advocate General for the State of Tamil Nadu to get instructions on the status of the recommendation of the Council of Ministers to the Governor. During the course of hearing of applications filed for parole, the High Court was informed that the Governor has not taken a decision on the recommendation made by the State Cabinet pertaining to the remission of the 5 | P a g e Appellant’s sentence, as the final report of the Multi- Disciplinary Monitoring Agency (for short, ‘MDMA’) was awaited. The CBI filed an affidavit in these Appeals on 20.11.2020 informing this Court that no request had been made by the Governor seeking report of the MDMA and that the petition filed under Article 161 can be decided on its own merits. 7. The learned Solicitor General of India appeared on 21.01.2021 to inform this Court that a decision would be taken by the Governor on the petition filed under Article 161 without any further delay. Thereafter, on 04.02.2021, an affidavit was filed by the Deputy Secretary, Ministry of Home Affairs, stating that the Governor had, by order dated 25.01.2021, determined the President of India to be the appropriate authority to decide the petition filed by the Appellant under Article 161 and had forwarded the same, along with the recommendation made by the Tamil Nadu cabinet, to the President of India. 8. By an order dated 09.03.2022, this Court released the Appellant on bail, taking into account the fact that the Appellant had spent more than 31 years in jail, that his conduct in jail was good, he had acquired several educational qualifications and was suffering from ill health. 6 | P a g e 9. pardon / suspension granted by the Governor till date under Article 161 would be unconstitutional. 10. 7 | P a g e the Constitution, the Governor is bound by the decision of the Governor is not constitutionally empowered to sit in judgment of the recommendation of the Council of Ministers. He further urged that there is no provision in the Constitution which enables the Governor to refer the recommendation of the State Cabinet for the decision of the President of India. Such actions of the Governor would be in violation of the federal structure of this country, which is a basic feature of our Constitution. 11. Mr. K. M. Natraj, learned Additional Solicitor General of India, submitted that the appropriate Government in the matter of remission / commutation in the present case is the U\bion of India. He sought support from certain passages of the judgment of this Court in Sriharan (supra) and argued that the Governor rightly referred the recommendation made by the State Cabinet, as it is only the President of India who can take a decision on the remission / commutation of the sentence of the Appellant. He further contended that the Governor was not always bound by the advice of the Council 8 | P a g e of Ministers and there were recognised exceptions to the said rule where the Governor is required to act in his own discretion. For the said proposition, he relied upon a judgment of this Court in M.P. Special Police Establishment v. State of M.P. 2 , wherein it was held that on those occasions where on facts the bias of the Council of Ministers became apparent and / or the decision of the Council of Ministers is shown to be irrational and based on non-consideration of relevant factors, the Governor would be right, on the facts of that case, to act in his own discretion and grant sanction. He made an attempt to convince this Court that the point canvassed by the Appellant pertaining to the reference of the recommendations of the State Cabinet to the President of India is beyond the scope of the writ petition and, therefore, should not be entertained. 12. The only point that requires to be considered in these Appeals is the correctness of the reference made by the Governor to the President of India on 25.01.2021, without taking a decision on the recommendation made by the State Cabinet on remission of the sentence of the Appellant. We do not accept the preliminary objection of the learned Additional Solicitor General that this point is not within the 2 (2004) 8 SCC 788 9 | P a g e scope of this appeal. From the facts mentioned above, it is clear that these Appeals are filed against orders passed by the High Court refusing to entertain petitions filed by the of these Appeals, the petition preferred by the Appellant for remission was favourably considered by the State Cabinet on 09.09.2018 but the Governor did not take any decision on | P a g e 13. except in so far as he is by or under this Constitution required to exercise his functions or any of them in his discretion. 14. The limits within which the executive Government can function under the Indian Constitution can be ascertained without much difficulty by reference to the form of the executive which our Constitution has set up. Our Constitution, though federal in its structure, is modelled on the British parliamentary system where the executive is deemed to have the primary responsibility for the formulation of governmental policy and its transmission into 11 | P a g e law though the condition precedent to the exercise of this responsibility is its retaining the confidence of the legislative branch of the State. The Governor occupies the position of the head of the executive in the State but it is virtually the we have the same system of parliamentary executive as in 3 Rai Sahib Ram Jawaya Kapur v. State of Punjab (1955) 2 SCR 225 12 | P a g e 356 and 360, the satisfaction required by the Constitution is not the personal satisfaction of the President or of the Governor but is the satisfaction of the President or of the or under a constitutional provision, to discharge the function concerned, in his own discretion. 5 17.…the Governor is the formal head and sole repository of the executive power but is incapable of acting except on, and according to, the advice of his Council of Ministers. The upshot is that the State Government, whether the Governor 4 Samsher Singh v. State of Punjab (1974) 2 SCC 831 5 Nabam Rebia and Bamang Felix v. Deputy Speaker, Arunachal Pradesh Legislative Assembly (2016) 8 SCC 1 6 (1981) 1 SCC 161 13 | P a g e likes it or not, can advice and act under Article 161, the Governor being bound by that advice. The action of Punjab 7, this Court in remission of sentences under Article 161. No provision under the Constitution has been pointed out to us nor any satisfactory response tendered as to the source of the 7 (1974) 2 SCC 831 14 | P a g e Governor’s power to refer a recommendation made by the action is contrary to the constitutional scheme elaborated above. It is relevant to point out that the recommendation made by the State Cabinet was on 09.09.2018, which remained pending before the Governor for almost two and a half years without a decision being taken. It was only when act done or purported to be done by him in the exercise and performance of such powers and duties. However, as held by this Court in numerous decisions, this Court has the power of which can be impugned on certain grounds. Non-exercise of the power under Article 161 is not immune from judicial review, as held by this Court in Epuru Sudhakar v. Govt. 15 | P a g e of A.P. 8. Given petitions under Article 161 pertain to the liberty of individuals, inexplicable delay not on account of the prisoners is inexcusable as it contributes to adverse physical conditions and mental distress faced by a prisoner, especially when the State Cabinet has taken a decision to release the commutation of his sentence. 21. the Governor was of the opinion that a | P a g e prosecution was made out and granted sanction. Writ petitions were filed under Article 226 of the Constitution by the aggrieved Ministers on the ground that the Governor Court of Madhya Pradesh allowed the writ petitions of the Ministers by concluding that granting sanction for prosecuting the Ministers was not a function which could be exercised by the Governor ‘in his discretion’ and the Governor could not have acted contrary to the aid and advice have to act in his own discretion. It was noted by this Court | P a g e consideration a relevant fact or orders passed on the basis of irrelevant and extraneous factors not germane to the purpose of arriving at the conclusion would vitiate an administrative order. In such cases, this Court was of the opinion that the Governor can act in his own discretion, or else, there would be a complete breakdown of the rule of law. 22. We are afraid that the judgment of this Court in M.P. Special Police Establishment (supra) is not applicable to the facts of the present case. No arguments have been put forth to make out a case of non-consideration of relevant factors by the State Cabinet or of the State Cabinet having based its recommendation on extraneous considerations. Moreover, in the said case, the Governor had taken a decision which was subsequently challenged, unlike the present case, where the Governor has merely forwarded the recommendation made by the State Cabinet to the President of India. 23. Strong reliance was placed by Mr. Natraj on the judgment of this Court in Sriharan (supra) to contend that it is only the President of India who has the power to pardon or grant remission or commutation of sentence, when a sentence is imposed under any of the provisions of the IPC and that the Governor has no power to grant pardon in 18 | P a g e exercise of his power under Article 161 of the Constitution. One of the points that was framed for consideration by the “Questions 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 52.4 Whether the Union or the State has primacy 52.5 Whether there can be two appropriate Answer 180. The status of appropriate Government whether the 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 Parliament or under the Constitution itself then in the event of the conviction and sentence covered by the said law of Parliament or the provisions of the Constitution even if the Legislature of the State is also 19 | P a g e empowered to make a law on the same subject and coextensive, the appropriate Government will be the Union Government having regard to the prescription [G.V. Ramanaiah v. Supt. of Central Jail, (1974) 3 SCC 531 : 1974 SCC (Cri) 6 : 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 Entry 1 to the Constitution and is in the exclusive domain | P a g e 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 1 SCR 497 at p. 516] in matters concerning offences under Section 302 IPC it is the Governor under Article 161 or the State Government as appropriate Government under the CrPC who have been exercising appropriate powers.” 25. (a) in cases where the sentence is for an offence against, or the order referred to in sub-section (6) is passed under, a\by law relating to a matter to which the executive power of the Union extends, the Central Governme\bt; (b) in other cases, the Government of the State within this Court looked into and rendered a detailed analysis of Articles 72, 73, 161 and 162. The focal point of discussion in 21 | P a g e the judgment relates to the proviso to Article 73 of the(1) Subject to the provisions of this Constitution, the Provided that the executive power referred to in subclause (a) shall not, save as expressly provided in this Constitution or in a\by law made by Parliame\bt, extend in a\by State to matters with respect to which the Legislature of the State has also power to make laws. … 26. corresponds to Article 73, it was held by this Court that where the State Legislature was also empowered to make laws on the same subject, determination of whether the executive power of the U\bion Government would extend to the State Government or not has to be decided by taking into account the fact of whether executive power has been expressly conferred on the Centre, either by the Constitution or under the law made by the Parliament. Therefore, to assess whether the executive power of the U\bion extended 22 | P a g e to a subject-matter in List III of the Seventh Schedule of the Constitution, it has to be examined whether executive power had been expressly conferred on the U\bion under the the executive power of the State remained intact. To our matter of Section 302 is considered to be covered by an E\btry in List II or an E\btry in List III of the Seventh Schedule. taking note of the prolonged period of incarceration, educational qualifications obtained during the period of incarceration, conduct in jail as well as the futility of subjecting the prisoners to another round of litigation. 28. 23 | P a g e he has spent 16 years on the death row and 29 years in show that he is suffering from chronic ailments. Apart from his good behaviour in jail, the Appellant has also educated | P a g e 29. The law laid down by a catena of judgments of this Court is well-settled that the advice of the State Cabinet is binding on the Governor in the exercise of his powers under Article 161 of the Constitution. (b) Non-exercise of the power under Article 161 or inexplicable delay in exercise of such power not attributable to the prisoner is subject to judicial review by this Court, especially when the State Cabinet has taken a decision to release the prisoner and made recommendations to the Governor to this effect. (c) The reference of the recommendation of the Tamil Nadu Cabinet by the Governor to the President of India two and a half years after such recommendation had been made is without any constitutional backing and is inimical to the scheme of our Constitution, whereby “the The judgment of this Court in M.P. Special Police Establishment (supra) has no applicability to the facts 25 | P a g e the State Cabinet having based its decision on irrelevant The understanding sought to be attributed to the judgment of this Court in Sriharan (supra) with respect commute sentences imposed under Section 302, IPC is incorrect, as no express executive power has been conferred on the Centre either under the Constitution or law made by the Parliament in relation to Section 302. In the absence of such specific conferment, it is the Taking into account the 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 | P a g e 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 . His bail bonds are cancelled. 30. .....................................J. [ B. R. GAVAI ] .....................................J. [ A. S. BOPANNA ] New Delhi, May 18, 2022. 27 | P a g e 1 ITEM NO.1503 COURT NO.5 SECTION II-C S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS Petition(s) for Special Leave to Appeal (Crl.) No(s). 10039- 10040/2016 (Arising out of impugned final judgment and order dated 06-03-2015 in CRLOP No. 4084/2015 06-03-2015 in CRLOP No. 5073/2015 passed by the High Court Of Judicature At Madras) A.G. PERARIVALAN Petitioner(s) VERSUS THE STATE, SUPERINTENDENT OF POLICE CBI/SIT/MMDA, CHENNAI, TAMIL NADU AND ANR. Respondent(s) ( IA No. 101631/2020 - CLARIFICATION/DIRECTION IA No. 73470/2017 - PERMISSION TO FILE ADDITIONAL DOCUMENTS/FACTS/ANNEXURES IA No. 140310/2021 - PERMISSION TO FILE ADDITIONAL DOCUMENTS/FACTS/ANNEXURES IA No. 118421/2017 - SUSPENSION OF SENTENCE) WITH SLP(Crl) No. 2363/2021 (II-C) (IA No.38413/2021-EXEMPTION FROM FILING C/C OF THE IMPUGNED JUDGMENT) Date : 18-05-2022 These matters were called on for pronouncement of judgment today. For Petitioner(s) Mr. Gopal Sankaranarayanan, Sr Adv. Mr. Prabu Ramasubramanian, Adv. Mr. K.Paari Vendhan, AOR Mr. Raghunatha Sethupathy.B., Adv. Mr. Vishnu Unnikrishnan, Adv. Ms. Shivani Vij, Adv. Ms. Priya R.,Adv. For Respondent(s) Mr. Tushar Mehta, Ld. SG Mr. K.M. Nataraj, Ld. ASG Mr. Ashok Panigrahi, Adv. Ms. Vanshaja Shukla, Adv. Ms. Rekha Panday , Adv. Mr. Vatsal Joshi, Adv. Mr. Sharath Nambiar, Adv. Mr. Vinayak Sharma, Adv. Mr. Sushal Tiwari, Adv. Ms. Indira Bhakar, Adv. Mr. T.A. Khan, Adv. 2 Ms. Kirti Dua, Adv. Mr. Arvind Kumar Sharma, AOR Mr. B. V. Balaram Das, AOR Mr. G. Ananda Selvam, Adv. Mr. Thirumurugan, Adv. Mr. S. Muthu Krishnan, Adv. Mr. K. Mayil Samy, Adv. Mr. P. Soma Sundaram, AOR Mr. Rakesh Dwivedi,Sr Adv. Mr. V. Krishnamurthy, Sr. Adv./AAG Mr. Amit Anand Tiwari, AAG Dr. Joseph Aristotle S., AOR Mr.Eklavya Dwivedi, Adv. Ms. Mary Mitzy, Adv. Ms. Devyani Gupta, Adv. Ms. Tanvi Anand, Adv. Ms. Nupur Sharma, Adv. Mr. Shobhit Dwivedi, Adv. Mr. Sanjeev Kumar Mahara, Adv. Hon’ble Mr. Justice L\b Nageswara Rao pronounced the Judgment of the Bench comprising His Lordship, Hon’ble Mr. Justice B.R. Gavai and Hon’ble Mr. Justice A.S. Bopanna. Leave granted. The Appellant, who is already on bail, is set at liberty forthwith. His bail bonds are cancelled. The appeals are disposed of in terms of the Signed Reportable Judgment. (Geeta Ahuja) (Anand Prakash) Court Master Assistant Registrar (Signed Reportable Judgment is placed on the file)