•  •  Dark Mode

Your Interests & Preferences

I am a...

law firm lawyer
in-house company lawyer
litigation lawyer
law student
aspiring student
other

Website Look & Feel

 •  •  Dark Mode
Blog Layout

Save preferences
An estimated 326-minute read

Union of India v. V. Sriharan @ Murugan & Ors. – December 2, 2015 [Supreme Court]

 Email  Facebook  Tweet  Linked-in
Reportable IN THE SUPREME COURT OF INDIA CRIMINAL ORIGINAL JURISDICTION WRIT PETITION (CRL.) NO. 48 OF 2014Union of India …Petitioner VERSUSV. Sriharan @ Murugan & Ors. …Respondents WithWrit Petition (Crl.) No.185/2014Writ Petition (Crl.) No.150/2014Writ Petition (Crl.) No.66/2014Criminal Appeal No.1215/2011 J U D G M E N TFAKKIR MOHAMED IBRAHIM KALIFULLA, J.The Petitioner has challenged the letter dated 19.02.2014 issued by theChief Secretary, Government of Tamil Nadu to the Secretary, Government ofIndia wherein the State of Tamil Nadu proposed to remit the sentence oflife imprisonment and to release the respondent Nos. 1 to 7 in the WritPetition who were convicted in the Rajiv Gandhi assassination case. As faras respondent Nos. 1 to 3 are concerned, originally they were imposed withthe sentence of death. In the judgment reported as V. Sriharan aliasMurugan v. Union of India & Ors. - (2014) 4 SCC 242, the sentence of deathwas commuted by this Court. Immediately thereafter, the impugned lettercame to be issued by the State of Tamil Nadu which gave rise for the filingof the present Writ Petition. While dealing with the said Writ Petition,the learned Judges thought it fit to refer seven questions forconsideration by the Constitution Bench in the judgment reported as Unionof India v. V. Sriharan @ Murugan & Ors. - 2014 (11) SCC 1 and that is howthis Writ Petition has now been placed before us. In paragraph 52, thequestions have been framed for consideration by this Bench. The saidparagraph reads as under:“52.1 Whether imprisonment for life in terms of Section 53 read withSection 45 of the Penal Code meant imprisonment for rest of the life of theprisoner or a convict undergoing life imprisonment has a right to claimremission and whether as per the principles enunciated in paras 91 to 93 ofSwamy Shraddananda(2), a special category of sentence may be made for thevery few cases where the death penalty might be substituted by thepunishment of imprisonment for life or imprisonment for a term in excess offourteen years and to put that category beyond application of remission?Whether the “Appropriate Government” is permitted to exercise the power ofremission under Section 432/433 of the Code after the parallel power hasbeen exercised by the President under Article 72 or the Governor underArticle 161 or by this Court in its Constitutional power under Article 32as in this case?Whether Section 432(7) of the Code clearly gives primacy to the ExecutivePower of the Union and excludes the Executive Power of the State where thepower of the Union is co-extensive?Whether the Union or the State has primacy over the subject matter enlistedin List III of the Seventh Schedule to the Constitution of India forexercise of power of remission?Whether there can be two Appropriate Governments in a given case underSection 432(7) of the Code?Whether suo motu exercise of power of remission under Section 432(1) ispermissible in the scheme of the section, if yes, whether the procedureprescribed in sub-clause (2) of the same Section is mandatory or not?Whether the term “‘Consultation’” stipulated in Section 435(1) of the Codeimplies “‘Concurrence’”?”It was felt that the questions raised were of utmost critical concern forthe whole of the country, as the decision on the questions would determinethe procedure for awarding sentence in criminal justice system. When werefer to the questions as mentioned in paragraph 52 and when we heard thelearned Solicitor General for the petitioner and the counsel who appearedfor the State of Tamil Nadu as well as respondent Nos. 1 to 7, we find thatthe following issues arise for our consideration:(a) Maintainability of this Writ Petition under Article 32 of theConstitution by the Union of India.(b) (i) Whether imprisonment for life means for the rest of one’s lifewith any right to claim remission?(ii) Whether as held in Shraddananda case a special category of sentence;instead of death; for a term exceeding 14 years and put that categorybeyond application of remission can be imposed?(c) Whether the Appropriate Government is permitted to grant remissionunder Sections 432/433 Code of Criminal Procedure after the parallel powerwas exercised under Article 72 by the President and under Article 161 bythe Governor of the State or by the Supreme Court under its Constitutionalpower(s) under Article 32?(d) Whether Union or the State has primacy for the exercise of powerunder Section 432(7) over the subject matter enlisted in List III of theSeventh Schedule for grant of remission?(e) Whether there can be two Appropriate Governments under Section 432(7)of the Code?(f) Whether the power under Section 432(1) can be exercised suomotu, if yes, whether the procedure prescribed under Section 432(2) ismandatory or not?(g) Whether the expression “‘Consultation’” stipulated in Section 435(1)of the Code implies ‘‘Concurrence’’?On the question of maintainability of the Writ Petition by the Union ofIndia, according to learned Solicitor General, the same cannot be permittedto be raised in this Reference since the said question was not raised andconsidered in the order of Reference reported as Union of India v. V.Sriharan alias Murugan & Ors.(supra), and that when notice was issued inthe Writ Petition to all the States on 09.07.2014 then also this questionwas not considered, that the scheme of Code of Criminal Procedure was toprotect the interest of victims at the hands of accused which onerousresponsibility is cast on the agency of the Central Government, namely, theCBI which took over the investigation on the very next day of the crimeand, therefore, the Union of India has every locus to file the writpetition, that since the issue raised in the Writ Petition cannot be workedout by way of suit under Article 131 of the Constitution since the accusedare private parties, Writ Petition is the only remedy available, that afterthe questions of general importance are answered, the individual cases willgo before the Regular Benches and, therefore, the Union of India is onlyconcerned about the questions of general importance and lastly if Union ofIndia is held to be the Appropriate Government in a case of this nature,then the State will be denuded of all powers under Sections 432/433 Code ofCriminal Procedure and consequently any attempted exercise will fall to theground.Mr. Rakesh Dwivedi, learned Senior Counsel who appeared for the State ofTamil Nadu would, however, contend that the Writ Petition does not reflectany violation of fundamental right for invoking Article 32, that themaintainability question was raised as could be seen from the additionalgrounds raised by the Union of India in the Writ Petition itself though thequestion was not considered in the order of Reference. Mr. Ram Jethmalani,learned Senior Counsel who appeared for the private respondent(s) byreferring to Articles 143 and 145(3) read along with the proviso to thesaid sub-Article submitted that when no question of law was likely toarise, the referral itself need not have been made and, therefore, there isnothing to be answered. By referring to each of the sub-paragraphs inparagraph 52 of the Reference order, the learned Senior Counsel submittedthat none of them would fall under the category of Constitutional questionand, therefore, the Writ Petition was not maintainable. The learned SeniorCounsel by referring to the correspondence exchanged between the State andthe Union of India and the judgment reported as V. Sriharan alias Muruganv. Union of India & Ors. (supra) by which the sentence was commuted by thisCourt as stated in particular paragraph 32 of the said judgment, contendedthat in that judgment itself while it was held that commutation was madesubject to the procedural checks mentioned in Section 432 and furthersubstantive check in Section 433-A of the Code there is nothing more to beconsidered in this Writ Petition.Having considered the objections raised on the ground of maintainability,having heard the respective counsel on the said question and having regardto the nature of issues which have been referred for consideration by thisConstitution Bench, as rightly contended by the learned Solicitor General,we are also convinced that answer to those questions would involvesubstantial questions of law as to the interpretation of Articles 72, 73,161 and 162, various Entries in the Seventh Schedule consisting of Lists Ito III as well as the corresponding provisions of Indian Penal Code andCode of Criminal Procedure and thereby serious public interest would arisefor consideration and, therefore, we do not find it appropriate to rejectthe Reference on the narrow technical ground of maintainability. We,therefore, proceed to find an answer to the questions referred forconsideration by this Constitution Bench.Having thus steered clear of the preliminary objections raised by therespondents on the ground of maintainability even before entering into thediscussion on the various questions referred, it will have to be statedthat though in the Writ Petition the challenge is to the letter of State ofTamil Nadu dated 19.02.2014, by which, before granting remission of thesentences imposed on the private respondent Nos.1 to 7, the StateGovernment approached the Union of India by way of ‘Consultation’ as hasbeen stipulated in Section 435(1) of Cr.P.C, the questions which have beenreferred for the consideration of the Constitution Bench have nothing to dowith the challenge raised in the Writ Petition as against the letter dated19.02.2014. Therefore, at this juncture we do not propose to examine thecorrectness or validity or the power of the State of Tamil Nadu in havingissued the letter dated 19.02.2014. It may be, that depending upon theultimate answers rendered to the various questions referred for ourconsideration, we ourselves may deal with the challenge raised as againstthe letter of the State Government dated 19.02.2014 or may leave it openfor consideration by the appropriate Bench which may deal with the WritPetition on merits.In fact in this context, the submission of Learned Solicitor General thatthe answers to the various questions referred for consideration by theConstitution Bench may throw light on individual cases which are pending orwhich may arise in future for being disposed of in tune with the answersthat may be rendered needs to be appreciated.Keeping the above factors in mind, precisely the nature of questionsculminates as follows: As to whether the imprisonment for life means till the end of convict’slife with or without any scope for remission?(ii) Whether a special category of sentence instead of death for a termexceeding 14 years can be made by putting that category beyond grant ofremission?(iii) Whether the power under Sections 432 and 433 Code of CriminalProcedure by Appropriate Government would be available even after theConstitutional power under Articles 72 and 161 by the President and theGovernor is exercised as well as the power exercised by this Court underArticle 32?Whether State or the Central Government have the primacy under Section432(7) of Code of Criminal Procedure?Whether there can be two Appropriate Governments under Section 432(7)?Whether power under Section 432(1) can be exercised suo motu withoutfollowing the procedure prescribed under section 432(2)?Whether the expression ‘‘Consultation’’ stipulated in 435(1) really means‘‘Concurrence’’?In order to appreciate the various contentions raised on the abovequestions by the respective parties and also to arrive at a just conclusionand render an appropriate answer, it is necessary to note the relevantprovisions in the Constitution, the Indian Penal Code and the Code ofCriminal Procedure The relevant provisions of the Constitution whichrequire to be noted are Articles 72, 73, 161, 162, 246(4), 245(2), 249, 250as well as some of the Entries in List I, II and III of the SeventhSchedule. In the Indian Penal Code the relevant provisions required to bestated are Sections 6, 7, 17, 45, 46, 53, 54, 55, 55A, 57, 65, 222, 392,457, 458, 370, 376A 376B and 376E. In the Code of Criminal Procedure, theprovisions relevant for our purpose are Sections 2(y), 4, 432, 433, 434,433A and 435. The said provisions can be noted as and when we examinethose provisions and make an analysis of its application in the context inwhich we have to deal with those provisions in the case on hand.Keeping in mind the above perception, we proceed to examine the provisionscontained in the Constitution. Articles 72, 73, 161 and 162 of theConstitution read as under:“Article 72.- Power of President to grant pardons, etc., and to suspend,remit or commute sentences in certain cases .- (1) the President shall havethe power to grant pardons, reprieves, respites or remissions of punishmentor to suspend, remit or commute the sentence of any person convicted of anyoffence- In all cases where the punishment or sentence is by a Court Martial ; In all cases where the punishment or sentence is for an offence againstany law relating to a matter to which the Executive Power of the Unionextends;In all cases where the sentence is a sentence of death.Nothing in sub-clause (a) of clause (1) shall affect the power conferred bylaw on any officer of the Armed Forces of the Union to suspend, remit orcommute a sentence passed by a Court martial.Nothing in sub-clause (c) of clause (1) shall affect the power to suspend,remit or commute a sentence of death exercisable by the Governor of a Stateunder any law for the time being in force.”Article 73. Extent of executive power of the UnionSubject to the provisions of this Constitution, the executive power of theUnion shall extend—(a) to the matters with respect to which Parliament has power to make laws;and(b) to the exercise of such rights, authority and jurisdiction as areexercisable by the Government of India by virtue of any treaty oragreement:Provided that the executive power referred to in sub-clause (a) shall not,save as expressly provided in this Constitution or in any law made byParliament, extend in any State to matters with respect to which theLegislature of the State has also power to make laws.(2) Until otherwise provided by Parliament, a State and any officer orauthority of a State may, notwithstanding anything in this article,continue to exercise in matters with respect to which Parliament has powerto make laws for that State such executive power or functions as the Stateor officer or authority thereof could exercise immediately before thecommencement of this Constitution.Article 161.- Power of Governor to grant pardons, etc., and to suspend,remit or commute sentences in certain casesThe Governor of a State shall have the power to grant pardons, reprieves,respites or remissions of punishment or to suspend, remit or commute thesentence of any person convicted of any offence against any law relating toa matter to which the executive power of the State extends.Article 162.- Extent of executive power of State Subject to the provisions of this Constitution, the executive powerof a State shall extend to the matters with respect to which theLegislature of the State has power to make laws: Provided that in any matter with respect to which the Legislature ofa State and Parliament have power to make laws, the executive power of theState shall be subject to, and limited by, the executive power expresslyconferred by this Constitution or by any law made by Parliament upon theUnion or authorities thereof.Under Article 72, there is all pervasive power with the President as theExecutive Head of the Union as stated under Article 53, to grant pardons,reprieves, respite and remission of punishments apart from the power tosuspend, remit or commute the sentence of any person convicted of anyoffence. Therefore, the substantive part of sub-Article (1), when read,shows the enormous Constitutional power vested with the President to doaway with the conviction imposed on any person of any offence apart fromgranting the lesser relief of reprieve, respite or remission of punishment.The power also includes power to suspend, remit or commute the sentence ofany person convicted of any offence. Sub-Article (1), therefore, disclosesthat the power of the President can go to the extent of wiping of theconviction of the person of any offence by granting a pardon apart from thepower to remit the punishment or to suspend or commute the sentence.For the present purpose, we do not find any need to deal with Article72(1)(a). However, we are very much concerned with Article 72(1)(b) whichhas to be read along with Article 73 of the Constitution. Reading Article72(1)(b) in isolation, it prescribes the power of the President for thegrant of pardon, reprieve, remission, commutation etc. in all cases wherethe punishment or sentence is for an offence against any law relating to amatter to which the Executive Power of the Union extends. In this contextwhen we refer to sub-Article (1) (a) of Article 73 which has set out theextent of Executive Power of the Union, it discloses that the said power iscontrolled only by the proviso contained therein. Therefore, readingArticle 72(1)(b) along with Article 73(1)(a) in respect of a matter inwhich the absolute power of the President for grant of pardon etc. willremain in the event of express provisions in the Constitution or in any lawmade by the Parliament specifying the Executive Power of the Centre soprescribed. When we refer to Article 72(1)(c) the power of the Presidentextends to all cases where the sentence is a sentence of death.When we examine the above all pervasive power vested with the President, asmall area is carved out under Article 72(3), wherein, in respect of caseswhere the sentence is a sentence of death, it is provided that irrespectiveof such enormous power vested with the President relating to cases wheresentence of death is the punishment, the power to suspend, remit or commutea sentence of death by the Governor would still be available under any lawfor the time being in force which fall within the Executive Powerexercisable by the Governor of the State. Article 72(1)(c) read along withArticle 72(3) is also referable to the proviso to Article 73(1) as well asArticles 161 and 162.When we read the proviso, while making reference to the availability of theExecutive Power of the Union under Article 73(1)(a), we find a restrictionimposed in the exercise of such power in any State with reference to amatter with respect to which the Legislature of the State has also power tomake laws, save as expressly provided in the Constitution or any law madeby the Parliament conferment of Executive Power with the Centre. Therefore,the exercise of the Executive Power of the union under Article 73(1)(a)would be subject to the provisions of the said saving clause vis-a-vis anyState. Therefore, reading Article 72(1)(a) and (3) along with the provisoto Article 73(1)(a) it emerges that wherever the Constitution expresslyprovides as such or a law is made by the Parliament that empowers allpervasive 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 lawsare available to the States as well.When we come to Article 161 which empowers the Governor to grant pardonetc. which is more or less identical to the power vested with the Presidentunder Article 72, though not to the full extent, the said Article empowersthe Governor of a State to grant pardon, respite, reprieve or remission orto suspend, remit or commute the sentence of any person convicted of anyoffence against any law relating to a matter to which the Executive Powerof the State extends. It will be necessary to keep in mind while readingArticle 161, the nature and the extent to which the extended ExecutivePower of the Union is available under Article 73(1)(a), as controlled underthe proviso to the said Article.Before deliberating upon the extent of Executive power which can also beexercised by the State, reference should also be made to Article 162 whichprescribes the extent of Executive Power of the State. The Executive Powerof the State under the said Article extends to the matters with respect towhich the Legislature of the State has power to make laws. The proviso toArticle 162 which is more or less identical to the words expressed in theproviso to Article 73(1)(a) when applied would result in a situation wherethe result of the consequences that would follow by applying the proviso toArticle 73(1)(a) would be the resultant position.Pithily stated under the proviso to Article 73(1)(a) where there is anexpress provision in the Constitution or any law is made by the Parliament,providing for specific Executive Power with the Centre, then the ExecutivePower referred to in sub-clause (a) of sub-article (1) of Article 73 wouldbe available to the Union and would also extend in any State to matterswith respect to which the Legislature of the State has also powers to makelaws. In other words, it can be stated that, in the absence of any suchexpress provision in the Constitution or any law made by the Parliament inthat regard, the enormous Executive Power of the Union stipulated inArticle 73(1)(a), would not be available for the Union to be extended toany State to matters with respect to which the Legislature of the State hasalso powers to make laws. To put it differently, in order to enable theExecutive Power of the Union to extend to any State with respect to whichthe Legislature of a State has also got power to make laws, there must bean express provision providing for Executive Power in the Constitution orany law made by the Parliament. Therefore, the said prescription, namely,the saving clause provided in the proviso to Article 73(1)(a) will be ofparamount consideration for the Union to exercise its Executive Power whileexamining the provision providing for the extent of Executive Power of theState as contained in Article 162.Before examining the questions referred for consideration, it will benecessary to make a detailed analysis of the Constitutional and statutoryprovisions that would be required to be applied. When we refer to Article161, that is the power of the Governor to grant pardon etc., as well as tosuspend, remit etc., the last set of expressions contained in the saidArticle, namely, “to a matter to which the Executive Power of the Stateextends”, makes it clear that the exercise of such power by the Governor ofState is restricted to the sentence of any person convicted of any offenceagainst any law relating to a matter to which the Executive Power of theState is extended. In other words, such power of the Governor is regulatedby the Executive Power of the State as has been stipulated in Article 162.In turn, we have to analyze the extent, to which the Executive Power of theUnion as provided under Article 73(1)(a) regulated by the proviso to thesaid sub-article (1), which stipulates that the overall Executive Power ofthe Union is regulated to the extent to which the legislature of State hasalso got the power to make laws subject, however, to the express provisionsin the Constitution or in any law made by Parliament. The proviso toArticle 162 only re-emphasizes the said extent of coextensive legislativepower of the State to make any laws at par with the Parliament which againwill be subject to, as well as, limited by the express provision providingfor Executive Power with the Centre in the Constitution or in any law madeby Parliament upon the Union or its authorities. In respect of thepunishments or convictions of any offence against any law relating to amatter to which the Executive Power of the State extends, the power ofpardon etc. or power to suspend or remit or commute etc., available to theGovernor of a State under Article 161 would be available as has beenstipulated therein.In this respect, when we examine the opening set of expressions in Article73(1), namely:“subject to the provisions of this Constitution, the Executive Power of theUnion extend……….”It will be appropriate to refer to Articles 246(4), 245(2), 249 and 250.Each of the said Articles will show the specific power conferred on theUnion in certain extraordinary situations as well as, in respect of areaswhich remain untouched by any of the States. Such powers referred to inthese Articles are de hors the specific power provided under Article73(1)(a), namely, with respect to matters for which Parliament has power tomake laws.In this context, it will also be relevant to analyze the scope of Article162 which prescribes the extent of Executive Power of the State. Proviso toArticle 162 in a way slightly expands the Executive Power of the Union withrespect to matters to which the State Legislature as well as the Parliamenthas power to make laws. In such matters the Executive Power of the State islimited and controlled to the extent to which the power of the Union aswell as its authorities are expressly conferred by the Constitution or thelaws made by Parliament.If we apply the above Constitutional prescription of the Executive Power ofthe Union vis-à-vis the Executive Power of the State in the present contextwith which we are concerned, namely, the power of remission, commutationetc., it is well known that the powers relating to those actions arecontained, governed and regulated by the provisions under the CriminalProcedure Code, which is the law made by Parliament covered by Entry 1 inList III (viz.), Concurrent List of the Seventh Schedule of theConstitution. What is prescribed in the proviso to Article 73(1)(a) is inrelation to “matters with respect to which the legislature of the State hasalso power to make laws” (Emphasis supplied). In other words, having regardto the fact that ‘criminal law is one of the items prescribed in List III,under Article 246(2), the State Legislature has also got power to make lawsin that subject. It is also to be borne in mind that The Indian Penal Codeand The Code of Criminal Procedure are the laws made by the Parliament.Therefore, the resultant position would be that, the Executive Power of theUnion and its authorities in relation to grant of remission, commutationetc., are available and can be exercised by virtue of the implication ofArticle 73(1)(a) read along with its proviso and the exercise of such powerby the State would be controlled and limited as stipulated in the provisoto Article 162 to the extent to which such control and limitations areprescribed in the Code of Criminal Procedure.On an analysis of the above-referred Constitutional provisions, namely, 72,73, 161 and 162 what emerges is: The President is vested with the power to grant pardons, reprieves,respites or remissions of punishment or to suspend, remit or commute thesentence of any person convicted of any offence in all cases where thepunishment or sentence is for an offence against any law relating to amatter to which the Executive Power of the Union extends as has beenprovided under Article 73(1)(a) subject, however, to the stipulationscontained in the proviso therein. Insofar as cases where the sentence is sentence of death such power tosuspend, remit or commute the sentence provided under Article 72(1) wouldbe available even to the Governor of a State wherever such sentence ofdeath came to be made under any law for the time being in force. The Executive Power of the Union as provided under Article 73(1)(a) willalso extend to a State if such Executive Power is expressly provided in theConstitution or in any law made by the Parliament even with respect tomatters with respect to which the Legislature of a State has also got thepower to make laws. The power of the Governor of any State to grant pardon etc., or tosuspend, remit or commute sentence etc., would be available in respect ofsentence of any person convicted of any offence against any law relating toa matter to which the Executive Power of the State extends and not beyond. The extent of Executive Power of the State which extend to all matterswith respect to which the legislature of the State has power to make lawsis, however, subject to and limited by the Executive Power expresslyconferred under the Constitution or by any law made by Parliament upon theUnion or the authorities of the Union.Keeping the above legal principles that emerge from a reading of Articles72, 73, 161 and 162, further analysis will have to be made as to the extentto which any such restrictions have been made providing for exclusive powerof the Union or co-extensive power of the State under the Constitution aswell as the laws made by the Parliament with reference to which theLegislature of the State has also got the power to make laws.The express provision contained in the Constitution prescribing theExecutive Power of the Union as well as on its authorities can be found inArticle 53. However, the nature of power stated therein has nothing to dowith the one referred to either in Article 73 (1)(a) or 162 of theConstitution. Under Articles 53 and 156 of the Constitution, the ExecutivePower of the Union and the State are to be exercised in the name of thePresident and the Governor of the State respectively. Though, underArticles 123, 213 and 239B of the Constitution, the power to issueOrdinance is vested with the President, the Governor and the Administratorof the Union, the State and the Union Territory of Puducherry respectivelyby way of an executive action, this Court has clarified that the exerciseof such power would be on par with the Legislative action and not by way ofan administrative action. Reference can be had to the decisions reported asK. Nagaraj and others v. State of Andhra Pradesh and another - 1985(1) SCC523 @ 548 paragraph 31 and T. Venkata Reddy and others v. State of AndhraPradesh - 1985(3) SCC 198 paragraph 14.Under Article 246(2) of the Constitution, Parliament and the State haveequal power to make laws with respect to any of the matters enumerated inList III of the Seventh Schedule. Under Article 246(4), the Parliament isvested with the power to make laws for any part of the territory of Indiawhich is not part of any State. Article 247 of the Constitution isreferable to Entry 11A of List III of Seventh Schedule. The said Entry isfor administration of justice, Constitution and organization of all Courts,except the Supreme Court and the High Courts. Under Article 247, Parliamentis empowered to provide for establishment of certain additional Courts.Whereas under Articles 233, 234 and 237 falling under Chapter VI of theConstitution appointment of District Judges, recruitment of persons otherthan District Judges, their service conditions and application of theprovisions under the said Chapter are all by the Governor of the State asits Executive Head subject, however in ‘Consultation’ with the High Courtexercising jurisdiction in relation to such State. Here and now it can benoted that having regard to the specific provisions contained in Article247 of the Constitution, the Central Government may enact a law providingfor establishment of additional Courts but unless the Executive Power ofthe Union to the specific extent is expressly provided in the said Articleor in the Statute if any, enacted for making the appointments then thesaving clause under the proviso to Article 73(1) (a) will have noapplication.Under Articles 249 and 250 of the Constitution, Parliament is empowered tolegislate with respect to a matter in the State List in the NationalInterest and if a Proclamation of Emergency is in operation. Therefore, inexercise of said superscriptive power any law is made, it must be statedthat exercise of any action by way of executive action would again becovered by the proviso to Article 73(1)(a) of the Constitution. Similarly,under Article 251 of the Constitution where any inconsistency between thelaws made by Parliament under Articles 249 and 250 and the laws made byState Legislature, the laws made by the Parliament whether made before orafter the laws made by the State would to the extent of repugnancy prevailso long as the law made by the Parliament continues to have effect. UnderArticle 252 of the Constitution, de hors the powers prescribed underArticles 249 and 250, with the express resolution of two or more of StateLegislatures, the Parliament is empowered to make laws applicable to suchStates. Further any such laws made can also be adopted by such other Stateswhose Legislature passes necessary resolution to the said effect. Hereagain in the event of such situations governed by Articles 251 and 252 ofConstitution emerge, the saving clause prescribed in the proviso to Article73(1)(a) will have application.Irrespective of special situations under which the laws made by theParliament would prevail over any State to the extent of repugnancy, asstipulated in Articles 249, 250 and 251 of the Constitution, Article 254provides for supervening power of the laws made by the Parliament by virtueof its competence, in respect of Entries found in the Concurrent List ifany repugnancy conflicting with the such laws of Parliament by any of thelaws of the State is found, to that extent such laws of the State wouldbecome inoperative and the laws of the Parliament would prevail, subject,however, to stipulations contained in sub-Article (2) of Article 254 andthe proviso.Article 256 of the Constitution is yet another superscriptus (Latin)Executive Power of the Union obligating the Executive Power of the State tobe subordinate to such power. Under the head Administrative relationsfalling under Chapter II of Part XI of the Constitution, Articles 256, 257,258 and 258A are placed. Article 257(1) prescribes the Executive Power ofthe State to ensure that it does not impede or prejudice the exercise ofthe Executive Power of the Union apart from the authority to give suchdirections to State as may appear to the Government of India to benecessary for that purpose. Under Article 258, the Executive Head of theUnion, namely, the President is empowered to confer the Executive Power ofthe Union on the States in certain cases. A converse provision iscontained in Article 258A of the Constitution by which, the Executive Headof the State, namely, the Governor can entrust the Executive Power of theState with the Centre. Here again, we find that all these Articles areclosely referable to the saving clause provided under the proviso toArticle 73(1)(a) of the Constitution.The saving clause contained in Article 277 of the Constitution is yetanother provision, whereunder, the authority of the Union in relation tolevy of taxes can be allowed to be continued to be levied by the States andthe local bodies, having regard to such levies being in vogue prior to thecommencement of the Constitution. However, the Union is empowered to assertits authority by making a specific law to that effect by the Parliamentunder the very same Article.Under the head ‘Miscellaneous Financial Provisions’ the Union or the Statecan make any grant for any public purpose, notwithstanding that the purposeis not one with respect to which Parliament or the Legislative of theState, as the case may be, can make laws.Article 285 of the Constitution is yet another provision where the power ofthe Union to get its properties lying in a State to be exempted frompayment of any tax. Similarly, under Article 286 restrictions on the Stateas to imposition of tax on the sale or purchase of goods outside the Stateis prescribed, which can be ascribed by a law of the Parliament.Article 289 prescribes the extent of the executive and legislative power ofthe Union and the Parliament in relation to exemption of property andincome of a State from Union taxation.The Executive Power of the Union and of each State as regards carrying onof any trade or business as to the acquisition, holding and disposal ofproperty and the making of contracts for any purpose is prescribed underArticle 298.The above Articles 277, 282, 285, 286 and 289 fall under Part XII, ChapterI and Article 298 under Chapter III.Articles 302, 303, 304 and 307 falling under Part XIII of the Constitutionread along with Entry 42 of List I, Entry 26 of List II and Entry 33 ofList III provides the relative and corresponding executive and legislativepower of the Union and the States with reference to Trade, Commerce andintercourse within the territory of India.Articles 352 and 353 of the Constitution falling under Part XVIII of theConstitution prescribe the power of the President to declare Proclamationof Emergency under certain contingencies and the effect of proclamation ofemergency. Under Article 355 of the Constitution, the duty has been cast onthe Union to protect every State against external aggression and internaldisturbance and to ensure that the Government of every State is carried onin accordance with the provisions of the Constitution.Article 369 of the Constitution falling under Part XXI empowers theParliament to make laws with respect to certain matters in the State Listsfor a limited period of five years and to cease after the said period byway of temporary and transitional measure.Thus a close reading of the various Constitutional provisions on theExecutive Power of the Centre and the State disclose the Constitutionalscheme of the framers of the Constitution to prescribe different types ofsuch Executive Powers to be exercised befitting different situations.However, the cardinal basic principle which weighed with the framers of theConstitution in a democratic federal set up is clear to the pointer that itshould be based on “a series of agreements as well as series ofcompromises”. In fact, the temporary Chairman of the Constituent Assembly,the Late Dr. Sachidananda Sinha, the oldest Parliamentarian in India, byvirtue of his long experience, advised; “that reasonable agreements andjudicious compromises are nowhere more called for than in framing aConstitution for a country like India”. His ultimate request was that; “theConstitution that you are going to plan, may similarly be reared for‘immortality’, if the rule of man may justly aspire to such a title, and itmay be a structure of adamantine strength, which will outlast and overcomeall present and future destructive forces”. With those lofty ideas, theConstitution came to be framed.We are, therefore, able to discern from a reading of the various provisionsof the Constitution referred to above, to be read in conjunction withArticles 72, 73, 161 and 162, which disclose the dichotomy of powersproviding for segregation, combination, specific exclusion (temporary orpermanent), interrelation, voluntary surrender, one time or transitional ortemporary measures, validating, superscriptus, etc. We are also able toclearly note that while the Executive Power of the State is by and largesusceptible to being controlled by the Executive Power of the Union undervery many circumstances specifically warranting for such control, thereverse is not the case. It is quite apparent that while the federal fabricof the set up is kept intact, when it comes to the question of NationalInterest or any other emergent or unforeseen situations warranting controlin the nature of a super-terrestrial order (celestial) the Executive Powerof the Union can be exercised like a bull in the China shop.At the risk of repetition we can even quote some of such provisions in theConstitution which by themselves expressly provide for such supremecontrol, as well as, some other provisions which enable the Parliament toprescribe such provisions by way of an enactment as and when it warrants.For instance, under Article 247 of the Constitution, by virtue of Entry 11Aof List III of the Seventh Schedule, the Parliament is empowered to providefor establishment of certain additional Courts at times of need. In fact,it can be validly stated that the establishment of Fast Track Courts in thevarious States and appointment of ad hoc Judges at the level of Entry levelDistrict Judges though not in the cadre strength, came to be made takinginto account the enormous number of undertrial prisoners facing Sessionscases of grievous offences in different States. This is one such provisionwhich expressly provided for remedying the situation in the Constitutionitself specifically covered by the proviso to Article 73(1)(a) and theproviso to Article 162 of the Constitution. Similar such provisions in theConstitution containing express powers can be noted in Articles 256, 257,258, 285 and 286 of the Constitution. We can quote any number such Articlesspecifically and expressly providing for higher Executive Power of theUnion governed by Article 73(1)(a) of the Constitution.Quite apart, we can also cite some of the Articles under which theParliament is enabled to promulgate laws which can specifically provide forspecific Executive Power vesting with the Union to be exercisable insupersession of the Executive Power of the State. Such provisions arecontained in Articles 246(2), 249, 250, 277, 286 and 369 of theConstitution.Having thus made an elaborate analysis of the Constitutional provisionsrelating to the relative Executive Power of the Union and the State as itexists and exercisable by the respective authorities in the givensituations, we wish to examine the provisions specifically available in theIndian Penal Code, Criminal Procedure Code, as well as the Specialenactment, namely, the Delhi Special Police Establishment Act under whichthe CBI operates, to understand the extent of powers exercisable by theState and the Centre in order to find an answer to the various questionsreferred for our consideration. In the Indian Penal Code, the provisions for our purpose can be segregatedinto two categories, namely, those by which various terms occurring in thePenal Code are defined or explained and those which specifically providefor particular nature of punishments that can be imposed for the nature ofoffence involved. Sections 17, 45, 46, 53, 54, 55, 55A are some of theprovisions by which the expressions occurring in the other provisions ofthe Code are defined or explained. Under Section 17, the word ‘Government’would mean the ‘Central Government’ or the ‘State Government’. UnderSection 45, the expression ‘life’ would denote the life of a human being,unless the contrary appears from the context. Similarly, the expression‘death’ would mean death of a human being unless the contrary appears fromthe context. Section 53 prescribes five kinds of punishments that can beimposed for different offences provided for in the Penal Code which rangesfrom the imposition of ‘fine’ to the capital punishment of ‘death’. Section54 empowers the Appropriate Government to commute the punishment of deathimposed on an offender for any other punishment even without the consent ofthe offender. Similar such power in the case of life imprisonment isprescribed under Section 55 to be exercised by the Appropriate Government,but in any case for a term not exceeding fourteen years. Section 55Adefines the term “Appropriate Government” with particular reference toSections 54 and 55 of the Penal Code.Having thus noted those provisions which highlight the various expressionsused in the Penal Code to be understood while dealing with the nature ofoffences committed and the punishments to be imposed, the other provisionswhich specify the extent of punishment to be imposed are also required tobe noted. For many of the offences, the prescribed punishments have beenspecified to be imposed upto a certain limit, namely, number of years orfine or with both. There are certain offences for which it is specificallyprovided that such punishment of imprisonment to be either life or aspecific term, namely, seven years or ten years or fourteen years and soon. To quote a few, under Section 370(5), (6) and (7) for the offence oftrafficking in person, such punishments shall not be less than fourteenyears, imprisonment for life to mean imprisonment for the remainder of thatperson’s natural life apart from fine. Similar such punishments areprovided under Sections 376(2), 376A, 376D and 376E.At this juncture, without going into much detail, we only wish to note thatthe Penal Code prescribes five different punishments starting from fine tothe imposition of capital punishment of Death depending upon the nature ofoffence committed. As far as the punishment of life imprisonment and deathis concerned, it is specifically explained that it would mean the life of ahuman being or the death of a human being, with a rider, unless thecontrary appears from the context, which means something written or spokenthat immediately precede or follow or that the circumstances relevant tosomething under consideration to be seen in the context. For instance, whenwe refer to the punishment provided for the offence under Section 376A or376D while prescribing life imprisonment as the maximum punishment that canbe imposed, it is specifically stipulated that such life imprisonment wouldmean for the remainder of that person’s natural life. We also wish to notethat under Sections 54 and 55 of the Penal Code, the power of theAppropriate Government to commute the Death sentence and life sentence isprovided which exercise of power is more elaborately specified in the Codeof Criminal Procedure. While dealing with the provisions of CriminalProcedure Code on this aspect we will make reference to such of thoseprovisions in the Penal Code which are required to be noted and considered.In this context, it is also relevant to note the provisions in the PenalCode wherein the punishment of death is provided apart from otherpunishments. Such provisions are Sections 120B(1), 121, 132, 194, 195A,302, 305, 307, 376A, 376E, 396 and 364A. The said provisions are requiredto be read along with Sections 366 to 371 and 392 of Code of CriminalProcedure. We will make a detailed reference to the above provisions ofPenal Code and Code of Criminal Procedure while considering the second partof the first question referred for our consideration.When we come to the provisions of Criminal Procedure Code, for our presentpurpose, we may refer to Sections 2(y), 432, 433, 433A, 434 and 435.Section 2(y) of the Code specifies that words and expressions used in theCode and not defined but defined in the Indian Penal Code (45 of 1860) willhave the same meaning respectively assigned to them in that Code. Section432 prescribes the power of the Appropriate Government to suspend or remitsentences. Section 432 (7) defines the expression ‘Appropriate Government’for the purpose of Sections 432 and 433. Section 433 enumerates the powerof the Appropriate Government for commutation of sentences, namely, fine,simple imprisonment, rigorous imprisonment, life imprisonment as well asthe punishment of death. Section 433A which came to be inserted by Act 45of 1978 w.e.f. 18.12.1978, imposes a restriction on the power ofAppropriate Government for remissions or suspensions or commutation ofpunishments provided under Sections 432 and 433 by specifying that exerciseof such power in relation to the punishment of death or life imprisonmentto ensure at least fourteen years of imprisonment. Under Section 434 inregard to sentences of death, concurrent powers of Central Government areprescribed which is provided for in Sections 432 and 433 upon the StateGovernment. Section 435 of the Code imposes a restriction upon the StateGovernment to consult the Central Government while exercising its powersunder Sections 432 and 433 of the Code under certain contingencies.In the case on hand, we are also obliged to refer to the provisions of theDelhi Special Police Establishment Act of 1946 (hereinafter referred to asthe “Special Act”) as the Reference which arose from the Writ Petition wasdealt with under the said Act. The Special Act came to be enacted to makeprovision for the Constitution of special force in Delhi for theinvestigation of certain offences in the Union Territory. Under Section 3of the Special Act, the Central Government can, by Notification in theofficial Gazette, specify the offences or classes of offences which are tobe investigated by the Delhi Special Police Establishment. Under Section 4,the superintendence of the Delhi Special Police Establishment vests withthe Central Government. Section 5 of the Special Act, however, empowers theCentral Government to extend the application of the said Act to any area ofany State other than Union Territories, the powers and jurisdiction of themembers of the Special Police Establishment for the investigation of anyoffences or classes of offences specified in a Notification under Section3. However, such empowerment on the Central Government is always subject tothe consent of the concerned State Government over whose area the SpecialPolice Establishment can be allowed to operate.Having noted the scope and ambit of the said Special Act, it is alsonecessary for our present purpose to refer to the communication of thePrincipal Secretary (Home) to Government of Tamil Nadu addressed to theJoint Secretary to Government of India, Department of Personal and Trainingdated 22.05.1991 forwarding the order of Government of Tamil Nadu,conveying its consent under Section 6 of the Special Act for the extensionof the powers and jurisdiction of members of Special Police Establishmentto investigate the case in Crime No.329/91 under Sections 302, 307, 326 IPCand under Sections 3 and 5 of The Indian Explosive Substances Act, 1908registered in Sriperumbudur P.S., Changai Anna (West) District, Tamil Nadurelating to the death of Late Rajiv Gandhi, former Prime Minister of Indiaon 21.05.1991. Pursuant to the said communication and order of State ofTamil Nadu dated 22.05.1991, the Government of India, Ministry ofPersonnel, Public Grievances and Pensions, Department of Personnel andTraining issued the Notification dated 23rd May, 1991 extending the powersand jurisdiction of the members of the Delhi Special Police Establishmentto the whole of the State of Tamil Nadu for investigation of the offencesregistered in Crime No.329/91 in Sriperumbudur Police Station of ChangaiAnna (West) District of Tamil Nadu. Relevant part of the said Notificationreads as under:-“a) Offences punishable under Section 302, 307, 326 of the Indian PenalCode, 1860 (Act No.45 of 1860) and under Section 5 and 6 of the IndianExplosive Substances Act 1908 (Act No.6 of 1903) relating to case in CrimeNo.329/91 registered in Sriperumbudur Police Station Changai-Anna (West)District, Tamil Nadu;b) Attempts, abetments and conspiracies in relation to or in connectionwith the offences mentioned above and any other offence or offencescommitted in the course of the same transaction arising out of the samefacts.”Having thus noted the relevant provisions in the Constitution, the PenalCode, Code of Criminal Procedure and the Special Act, we wish to deal withthe question referred for our consideration in seriatim. The first questionframed for the consideration of the Constitution Bench reads as under:‘Whether imprisonment for life in terms of Section 53 read with Section 45of the Penal Code meant imprisonment for rest of the life of the prisoneror a convict undergoing life imprisonment has a right to claim remissionand whether as per the principles enunciated in paras 91 to 93 of SwamyShraddananda (supra), a special category of sentence may be made for thevery few cases where the death penalty might be substituted by thepunishment of imprisonment for life or imprisonment for a term in excess offourteen years and to put that category beyond application of remission’.This question contains two parts. The first part poses a question as towhether life imprisonment as a punishment provided for under Section 53 ofthe Penal Code and as defined under Section 45 of the said Code meansimprisonment for the rest of one’s life or a convict has a right to claimremission. The second part is based on the ruling of Swamy Shraddananda (2)alias Murali Manohar Mishra v. State of Karnataka reported in (2008) 13 SCC767.Before answering the first part of this question, it will be worthwhile torefer to at least two earlier Constitution Bench decisions which cover thisvery question. The first one is reported as Gopal Vinayak Godse v. TheState of Maharashtra and others - (1961) 3 SCR 440. The first question thatwas considered in that decision was:“whether, under the relevant statutory provisions, an accused who wassentenced to transportation for life could legally be imprisoned in one ofthe jails in India; and if so what was the term for which he could be soimprisoned”.We are concerned with the second part of the said question, namely, as towhat was the term for which a life convict could be imprisoned. This Courtanswered the said question in the following words:“A sentence of transportation for life or imprisonment for life must primafacie be treated as transportation or imprisonment for the whole of theremaining period of the convicted person’s natural life”.The learned Judges also took note of the various punishments provided forin Section 53 of the Penal Code before rendering the said answer. However,we do not find any reference to Section 45 of the Penal Code which defines‘life’ to denote the life of a human being unless the contrary appears fromthe context.Having noted the ratio of the above said decision in this question, we canalso profitably refer to a subsequent Constitution Bench decision reportedas Maru Ram etc., etc. v. Union of India and another - 1981 (1) SCR 1196.At pages 1222-1223, this Court while endorsing the earlier ratio laid downin Godse (supra) held as under:“A possible confusion creeps into this discussion by equating lifeimprisonment with 20 years imprisonment. Reliance is placed for thispurpose on Section 55 IPC and on definitions in various Remission Schemes.All that we need say, as clearly pointed out in Godse, is that theseequivalents are meant for the limited objective of computation to help theState exercise its wide powers of total remissions. Even if the remissionsearned have totaled upto 20 years, still the State Government may or maynot release the prisoner and until such a release order remitting theremaining part of the life sentence is passed, the prisoners cannot claimhis liberty. The reason is that life sentence is nothing less than life-long imprisonment. Moreover, the penalty then and now is the same – lifeterm. And remission vests no right to release when the sentence is lifeimprisonment. No greater punishment is inflicted by Section 433A than thelaw annexed originally to the crime. Nor is any vested right to remissioncancelled by compulsory 14 years jail life once we realize the truism thata life sentence is a sentence for a whole life. See Sambha Ji Krishan Ji.v. State of Maharashtra, AIR 1974 SC 147 and State of Madhya Pradesh v.Ratan Singh & Ors. [1976] Supp. SCR 552” (Emphasis added)Again at page 1248 it is held as under:“We follow Godse’s case (supra) to hold that imprisonment for life lastsuntil the last breath, and whatever the length of remissions earned, theprisoner can claim release only if the remaining sentence is remitted byGovernment”.In an earlier decision of this Court reported as Sambha Ji Krishan Ji v.State of Maharashtra - AIR 1974 SC 147, in paragraph 4 it is held as under:“4.…….As regards the third contention, the legal position is that a personsentenced to transportation for life may be detained in prison for life.Accordingly, this Court cannot interfere on the mere ground that if theperiod of remission claimed by him is taken into account, he is entitled tobe released. It is for the Government to decide whether he should be givenany remissions and whether he should be released earlier.”Again in another judgment reported as State of Madhya Pradesh v. RatanSingh and others - (1976) 3 SCC 470, it was held as under in paragraph 9:“9. From a review of the authorities and the statutory provisions of theCode of Criminal Procedure the following proposition emerge:that a sentence of imprisonment for life does not automatically expire atthe end of 20 years including the remissions, because the administrativerules framed under the various Jail Manuals or under the Prisons Act cannotsupersede the statutory provisions of the Indian Penal Code. A sentence ofimprisonment for life means a sentence for the entire life of the prisonerunless the Appropriate Government chooses to exercise its discretion toremit either the whole or a part of the sentence under Section 401 of theCode of Criminal Procedure;” (Emphasis added)It will have to be stated that Section 401 referred to therein is thecorresponding present Section 432.We also wish to make reference to the statement of law made by theConstitution Bench in Maru Ram (supra) at pages 1221 and 1222. At page1221, it was held:“Here, again, if the sentence is to run until life lasts, remissions,quantified in time cannot reach a point of zero. This is the ratio ofGodse.”In the decision reported as Ranjit Singh alias Roda v. Union Territory ofChandigarh - (1984) 1 SCC 31 while commuting the death to lifeimprisonment, it was held that:“the two life sentences should run consecutively, to ensure that even ifany remission is granted for the first life sentence, the second one cancommence thereafter”.It is quite apparent that this Court by stating as above has affirmed thelegal position that the life imprisonment only means the entirety of thelife unless it is curtailed by remissions validly granted under the Code ofCriminal Procedure by the Appropriate Government or under Articles 72 and161 of the Constitution by the Executive Head viz., the President or theGovernor of the State, respectively.In the decision reported as Ashok Kumar alias Golu v. Union of India andothers - (1991) 3 SCC 498, it was specifically ruled that the decision inBhagirath (supra) does not run counter to Godse (supra) and Maru Ram(supra), paragraph 15 is relevant for our purpose, which reads as under:“15. It will thus be seen from the ratio laid down in the aforesaid twocases that where a person has been sentenced to imprisonment for life theremissions earned by him during his internment in prison under the relevantremission rules have a limited scope and must be confined to the scope andambit of the said rules and do not acquire significance until the sentenceis remitted under Section 432, in which case the remission would be subjectto limitation of Section 433-A of the Code, or Constitutional power hasbeen exercised under Article 72/161 of the Constitution. In Bhagirath casethe question which the Constitution Bench was required to consider waswhether a person sentenced to imprisonment for life can claim the benefitof Section 428 of the Code which, inter alia, provides for setting off theperiod of detention undergone by the accused as an undertrial against thesentence of imprisonment ultimately awarded to him. Referring to Section57, IPC, the Constitution Bench reiterated the legal position as under:“The provision contained in Section 57 that imprisonment for life has to bereckoned as equivalent to imprisonment for 20 years is for the purpose ofcalculating fractions of terms of punishment. We cannot press thatprovision into service for a wider purpose.”These observations are consistent with the ratio laid down in Godse andMaru Ram cases. Coming next to the question of set off under Section 428of the Code, this Court held:“The question of setting off the period of detention undergone by anaccused as an undertrial prisoner against the sentence of life imprisonmentcan arise only if an order is passed by the appropriate authority underSection 432 or Section 433 of the Code. In the absence of such order,passed generally or specially, and apart from the provisions, if any, ofthe relevant Jail Manual, imprisonment for life would mean, according tothe rule in Gopal Vinayak Godse, imprisonment for the remainder of life.”We fail to see any departure from the ratio of Godse case; on the contrarythe aforequoted passage clearly shows approval of that ratio and thisbecomes further clear from the final order passed by the court whileallowing the appeal/writ petition. The court directed that the period ofdetention undergone by the two accused as undertrial prisoners would be setoff against the sentence of life imprisonment imposed upon them, subjectto the provisions contained in Section 433-A and, ‘provided that ordershave been passed by the appropriate authority under Section 433 of the Codeof Criminal Procedure’. These directions make it clear beyond any mannerof doubt that just as in the case of remissions so also in the case of setoff the period of detention as undertrial would enure to the benefit of theconvict provided the Appropriate Government has chosen to pass an orderunder Sections 432/433 of the Code. The ratio of Bhagirath case, therefore,does not run counter to the ratio of this Court in the case of Godse orMaru Ram.” (underlining is ours)In Subash Chander v. Krishan Lal and others - (2001) 4 SCC 458, this Courtfollowed Godse (supra) and Ratan Singh (supra) and held that a sentence forlife means a sentence for entire life of the prisoner unless theAppropriate Government chooses to exercise its discretion to remit eitherthe whole or part of the sentence under Section 401 of Code of CriminalProcedure.Paragraphs 20 and 21 can be usefully referred to which read as under:“20. Section 57 of the Indian Penal Code provides that in calculatingfractions of terms of punishment, imprisonment for life shall be reckonedas equivalent to imprisonment for 20 years. It does not say that thetransportation for life shall be deemed to be for 20 years. The position atlaw is that unless the life imprisonment is commuted or remitted byappropriate authority under the relevant provisions of law applicable inthe case, a prisoner sentenced to life imprisonment is bound in law toserve the life term in prison. In Gopal Vinayak Godse v. State ofMaharashtra the petitioner convict contended that as the term ofimprisonment actually served by him exceeded 20 years, his furtherdetention in jail was illegal and prayed for being set at liberty.Repelling such a contention and referring to the judgment of the PrivyCouncil in Pandit Kishori Lal v. King Emperor this Court held: (SCR pp. 444-45) “If so, the next question is whether there is any provision of lawwhereunder a sentence for life imprisonment, without any formal remissionby Appropriate Government, can be automatically treated as one for adefinite period. No such provision is found in the Indian Penal Code, Codeof Criminal Procedure or the Prisons Act. Though the Government of Indiastated before the Judicial Committee in the case cited supra that, havingregard to Section 57 of the Indian Penal Code, 20 years’ imprisonment wasequivalent to a sentence of transportation for life, the Judicial Committeedid not express its final opinion on that question. The Judicial Committeeobserved in that case thus at p. 10: ‘Assuming that the sentence is to be regarded as one of twenty years, andsubject to remission for good conduct, he had not earned remissionsufficient to entitle him to discharge at the time of his application, andit was therefore rightly dismissed, but in saying this, their Lordships arenot to be taken as meaning that a life sentence must and in all cases betreated as one of not more than twenty years, or that the convict isnecessarily entitled to remission.’Section 57 of the Indian Penal Code has no real bearing on the questionraised before us. For calculating fractions of terms of punishment thesection provides that transportation for life shall be regarded asequivalent to imprisonment for twenty years. It does not say thattransportation for life shall be deemed to be transportation for twentyyears for all purposes; nor does the amended section which substitutes thewords ‘imprisonment for life’ for ‘transportation for life’ enable thedrawing of any such all-embracing fiction. A sentence of transportation forlife or imprisonment for life must prima facie be treated as transportationor imprisonment for the whole of the remaining period of the convictedperson’s natural life.”21. In State of M.P. v. Ratan Singh this Court held that a sentence ofimprisonment for life does not automatically expire at the end of 20 years,including the remissions. “A sentence of imprisonment for life means asentence for the entire life of the prisoner unless the AppropriateGovernment chooses to exercise its discretion to remit either the whole ora part of the sentence under Section 401 of the Code of CriminalProcedure”, observed the Court (at SCC p. 477, para 9). To the same effectare the judgments in Sohan Lal v. Asha Ram, Bhagirath v. Delhi Admn. andthe latest judgment in Zahid Hussein v. State of W.B. (Emphasis added)Having noted the above referred to two Constitution Bench decisions inGodse (supra) and Maru Ram (supra) which were consistently followed in thesubsequent decisions in Sambha Ji Krishan Ji (supra), Ratan Singh (supra),Ranjit Singh (supra), Ashok Kumar (supra) and Subash Chander (supra). Thefirst part of the first question can be conveniently answered to the effectthat imprisonment for life in terms of Section 53 read with Section 45 ofthe Penal Code only means imprisonment for rest of the life of the prisonersubject, however, to the right to claim remission, etc. as provided underArticles 72 and 161 of the Constitution to be exercisable by the Presidentand the Governor of the State and also as provided under Section 432 of theCode of Criminal Procedure.As far as remissions are concerned, it consists of two types. One type ofremission is what is earned by a prisoner under the Prison Rules or otherrelevant Rules based on his/her good behavior or such other stipulationsprescribed therein. The other remission is the grant of it by theAppropriate Government in exercise of its power under Section 432 Code ofCriminal Procedure Therefore, in the latter case when a remission of thesubstantive sentence is granted under Section 432, then and then onlygiving credit to the earned remission can take place and not otherwise.Similarly, in the case of a life imprisonment, meaning thereby the entiretyof one’s life, unless there is a commutation of such sentence for anyspecific period, there would be no scope to count the earned remission. Ineither case, it will again depend upon an answer to the second part of thefirst question based on the principles laid down in Swamy Shraddananda(supra).With that when we come to the second part of the first question whichpertains to the special category of sentence to be considered in substituteof Death Penalty by imposing a life sentence i.e., the entirety of the lifeor a term of imprisonment which can be less than full life term but morethan 14 years and put that category beyond application of remission whichhas been propounded in paragraphs 91 and 92 of Swamy Shraddananda (supra)and has come to stay as on this date.To understand and appreciate the principle set down in the said decision,it will be necessary to note the special features analysed by this Court inthe said judgment. At the very outset, it must be stated that the saiddecision was a well thought out one. This Court before laying down theprinciples therein noted the manner in which the appellant in that casecomprehended a scheme with a view to grab the wealth of the victim, who wasa married woman and who was seduced by the appellant solely with a view tomake an unholy accumulation of the wealth at the cost of the victim, whowent all out to get separated from her first husband by getting a divorce,married the appellant whole heartedly reposing very high amount of faith,trust and confidence and went to the extent of executing a Power ofAttorney in favour of the appellant for dealing with all her valuableproperties. This Court has stated that when the victim at some point oftime realized the evil designs of the appellant and found total mistrust inhim, the appellant set the clock for her elimination. It will be moreappropriate to note the observation made in the said judgment after notingthe manner in which the process of elimination was schemed by theappellant. Paragraphs 28, 29 and 30 of the Swamy Shraddananda (2) (supra)judgment gives graphic description of the ‘witchcrafted’ scheme formulatedand executed with all perfection by the appellant and the said paragraphscan be extracted herein which are as under:“28. These are, in brief, the facts of the case. On these facts, Mr. SanjayHegde, learned counsel for the State of Karnataka, supported the view takenby Katju, J. (as indeed by the High Court and the trial court) andsubmitted that the appellant deserved nothing less than death. In order tobring out the full horror of the crime Mr. Hegde reconstructed it beforethe Court. He said that after five years of marriage Shakereh’s infatuationfor the appellant had worn thin. She could see through his fraud and seehim for what he was, a lowly charlatan. The appellant could sense that hisgame was up but he was not willing to let go of all the wealth and thelavish lifestyle that he had gotten used to. He decided to kill Shakerehand take over all her wealth directly.29. In furtherance of his aim he conceived a terrible plan and executed itto perfection. He got a large pit dug up at a “safe” place just outsidetheir bedroom. The person who was to lie into it was told that it wasintended for the construction of a soak pit for the toilet. He got thebottom of one of the walls of the bedroom knocked off making a clearing topush the wooden box through; God only knows saying what to the person whowas to pass through it. He got a large wooden box (7 × 2 × 2 ft) made andbrought to 81, Richmond Road where it was kept in the guest house,mercifully out of sight of the person for whom it was meant. Having thuscompleted all his preparations he administered a very heavy dose ofsleeping drugs to her on 28-5-1991 when the servant couple, on receivinginformation in the morning regarding a death in their family in a villagein Andhra Pradesh asked permission for leave and some money in advance.However, before giving them the money asked for and letting them go, theappellant got the large wooden box brought from the guest house to thebedroom by Raju (with the help of three or four other persons called forthe purpose) where, according to Raju, he saw Shakereh (for the last time)lying on the bed, deep in sleep. After the servants had gone away and thefield was clear the appellant transferred Shakereh along with the mattress,the pillow and the bed sheet from the bed to the box, in all probabilitywhile she was still alive. He then shut the lid of the box and pushed itthrough the opening made in the wall into the pit, dug just outside theroom, got the pit filled up with earth and the surface cemented and coveredwith stone slabs.30. What the appellant did after committing murder of Shakereh was,according to Mr. Hegde even more shocking. He continued to live, like aghoul, in the same house and in the same room and started a massive game ofdeception. To Sabah, who desperately wanted to meet her mother or at leastto talk to her, he constantly fed lies and represented to the world atlarge that Shakereh was alive and well but was simply avoiding any socialcontacts. Behind the facade of deception he went on selling Shakereh’sproperties as quickly as possible to convert those into cash for easyappropriation. In conclusion, Mr. Hegde submitted that it was truly amurder most foul and Katju, J. was perfectly right in holding that thiscase came under the first, second and the fifth of the five categories,held by this Court as calling for the death sentence in Machhi Singh v.State of Punjab.”After noting the beastly character of the appellant, this Court made adetailed reference to those decisions in which the “rarest of rare case”principle was formulated and followed subsequently, namely, Machhi Singhand ors. v. State of Punjab reported in (1983) 3 SCC 470, Bachan Singh v.State of Punjab reported in (1980) 2 SCC 684, Jag Mohan Singh v. State ofU.P. reported in (1973) 1 SCC 20. While making reference to the saiddecisions and considering the submissions made at the Bar that for the sakeof saving the Constitutional validity of the provision providing for “DeathPenalty” this Court must step in to clearly define its scope byunmistakably making the types of grave murders and other capital offencethat would attract death penalty rather than the alternative punishment ofimprisonment for life. His Lordship Justice Aftab Alam, the author of thejudgment has expressed the impermissibility of this Court in agreeing tothe said submission in his own inimitable style in paragraphs 34, 36, 43,45 and 47 in the following words:"34. As on the earlier occasion, in Bachan Singh too the Court rejected thesubmission. The Court did not accept the contention that asking the Courtto state special reasons for awarding death sentence amounted to leavingthe Court to do something that was essentially a legislative function. TheCourt held that the exercise of judicial discretion on well-establishedprinciples and on the facts of each case was not the same as to legislate.On the contrary, the Court observed, any attempt to standardise or toidentify the types of cases for the purpose of death sentence would amountto taking up the legislative function. The Court said that a“standardisation or sentencing discretion is a policy matter which belongsto the sphere of legislation” and “the Court would not by overleaping itsbounds rush to do what Parliament, in its wisdom, warily did not do”.36. Arguing against standardisation of cases for the purpose of deathsentence the Court observed that even within a single category offencethere are infinite, unpredictable and unforeseeable variations. No twocases are exactly identical. There are countless permutations andcombinations which are beyond the anticipatory capacity of the humancalculus. The Court further observed that standardisation of the sentencingprocess tends to sacrifice justice at the altar of blind uniformity.43. In Machhi Singh the Court crafted the categories of murder in which“the community” should demand death sentence for the offender with greatcare and thoughtfulness. But the judgment in Machhi Singh was rendered on20-7-1983, nearly twenty-five years ago, that is to say a full generationearlier. A careful reading of the Machhi Singh categories will make itclear that the classification was made looking at murder mainly as an actof maladjusted individual criminal(s). In 1983 the country was relativelyfree from organised and professional crime. Abduction for ransom and gangrape and murders committed in the course of those offences were yet tobecome a menace for the society compelling the legislature to createspecial slots for those offences in the Penal Code. At the time of MachhiSingh, Delhi had not witnessed the infamous Sikh carnage. There was noattack on the country’s Parliament. There were no bombs planted byterrorists killing completely innocent people, men, women and children indozens with sickening frequency. There were no private armies. There wereno mafia cornering huge government contracts purely by muscle power. Therewere no reports of killings of social activists and “whistle-blowers”.There were no reports of custodial deaths and rape and fake encounters bypolice or even by armed forces. These developments would unquestionablyfind a more pronounced reflection in any classification if one were to bemade today. Relying upon the observations in Bachan Singh, therefore, werespectfully wish to say that even though the categories framed in MachhiSingh provide very useful guidelines, nonetheless those cannot be taken asinflexible, absolute or immutable. Further, even in those categories, therewould be scope for flexibility as observed in Bachan Singh itself.45. But the relative category may also be viewed from the numerical angle,that is to say, by comparing the case before the Court with other cases ofmurder of the same or similar kind, or even of a graver nature and then tosee what punishment, if any was awarded to the culprits in those othercases. What we mean to say is this, if in similar cases or in cases ofmurder of a far more revolting nature the culprits escaped the deathsentence or in some cases were even able to escape the criminal justicesystem altogether, it would be highly unreasonable and unjust to pick onthe condemned person and confirm the death penalty awarded to him/her bythe courts below simply because he/she happens to be before the Court. Butto look at a case in this perspective this Court has hardly any field ofcomparison. The Court is in a position to judge “the rarest of rare cases”or an “exceptional case” or an “extreme case” only among those cases thatcome to it with the sentence of death awarded by the trial court andconfirmed by the High Court. All those cases that may qualify as the rarestof rare cases and which may warrant death sentence but in which deathpenalty is actually not given due to an error of judgment by the trialcourt or the High Court automatically fall out of the field of comparison.47. We are not unconscious of the simple logic that in case five crimes goundetected and unpunished that is no reason not to apply the law toculprits committing the other five crimes. But this logic does not seem tohold good in case of death penalty. On this logic a convict of murder maybe punished with imprisonment for as long as you please. But death penaltyis something entirely different. No one can undo an executed deathsentence.” (underlining is ours)After noting the above principles, particularly culled out from thedecision in which the very principle namely “the rarest of rare cases”, oran “exceptional case” or an “extreme case”, it was noted that eventhereafter, in reality in later decisions neither the rarest of rare caseprinciple nor Machhi Singh (supra) categories were followed uniformly andconsistently. In this context, the learned Judges also noted some of thedecisions, namely, Aloke Nath Dutta and Ors. v. State of West Bengalreported in (2007) 12 SCC 230. This Court in Swamy Shraddananda (supra)also made a reference to a report called “Lethal Lottery, the Death Penaltyin India” compiled jointly by Amnesty International India and People’sUnion for Civil Liberties, Tamil Nadu, and Puduchery wherein a study of theSupreme Court judgments in death penalty cases from 1950 to 2006 wasreferred and one of the main facets made in the report (Chapters 2 to 4)was about the Court’s lack of uniformity and consistency in awarding deathsentence. This Court also noticed the ill effects it caused by reason ofsuch inconsistencies and lamented over the same in the following words inparagraph 52:“52. The inability of the criminal justice system to deal with all majorcrimes equally effectively and the want of uniformity in the sentencingprocess by the Court lead to a marked imbalance in the end results. On theone hand there appears a small band of cases in which the murder convict issent to the gallows on confirmation of his death penalty by this Court andon the other hand there is a much wider area of cases in which the offendercommitting murder of a similar or a far more revolting kind is spared hislife due to lack of consistency by the Court in giving punishments or worsethe offender is allowed to slip away unpunished on account of thedeficiencies in the criminal justice system. Thus the overall largerpicture gets asymmetric and lopsided and presents a poor reflection of thesystem of criminal administration of justice. This situation is a matter ofconcern for this Court and needs to be remedied.”We fully endorse the above anguish expressed by this Court and as rightlyput, the situation is a matter of serious concern for this Court and wishto examine whether the approach made thereafter by this Court does call forany interference or change or addition or mere confirmation. After havingexpressed its anguish in so many words this Court proceeded to examine thedetailed facts of the appellant’s role in that case and noted the criminalmagnanimity shown by him in killing the victim by stating that he devised aplan so that the victim could not know till the end and even for a momentthat she was betrayed by the one she trusted most and that the way ofkilling appears quite ghastly it may be said that it did not cause anymental or physical pain to the victim and that at least before the HighCourt he confessed his guilt. It must be stated that the manner in whichthe victim was sedated and buried while she was alive in the chamber no onewould knew whether at all she regained her senses and if so what amount oftorments and trauma she would have undergone before her breath came to ahalt. Nevertheless, nobody had the opportunity ever to remotely imagine theamount of such ghastly, horrendous gruesome feeling the victim would haveundergone in her last moments. In these circumstances, it was furtherexpressed by this Court that this Court must not be understood to mean thatthe crime committed by the appellant in that case was not grave or themotive behind the crime was not highly depressed. With these expressions,it was held that this Court was hesitant in endorsing the death penaltyawarded to him by the trial court and confirmed by the High Court. Thehangman’s noose was thus taken off the appellant’s neck.If one were to judge the case of the said appellant in the above backgroundof details from the standpoint of the victim’s side, it can be said withoutany hesitation that one would have unhesitatingly imposed the deathsentence. That may be called as the human reaction of anyone who isaffected by the conduct of the convict of such a ghastly crime. That mayeven be called as the reaction or reflection in the common man’s point ofview. But in an organized society where the Rule of Law prevails, forevery conduct of a human being, right or wrong, there is a well setmethodology followed based on time tested, well thought out principles oflaw either to reward or punish anyone which was crystallized from timeimmemorial by taking into account very many factors, such as the personconcerned, his or her past conduct, the background in which one was broughtup, the educational and knowledge base, the surroundings in which one wasbrought up, the societal background, the wherewithal, the circumstancesthat prevailed at the time when any act was committed or carried outwhether there was any preplan prevalent, whether it was an individualaction or personal action or happened at the instance of anybody else orsuch action happened to occur unknowingly, so on so forth. It is for thisreason, we find that the criminal law jurisprudence was developed bysetting forth very many ingredients while describing the various crimes,and by providing different kinds of punishment and even relating to suchpunishment different degrees, in order to ensure that the crimes allegedare befitting the nature and extent of commission of such crimes and thepunishments to be imposed meets with the requirement or the gravity of thecrime committed.Keeping the above perception of the Rule of Law and the settled principleof Criminal Law Jurisprudence, this Court expressed its concern as to inwhat manner even while let loose of the said appellant of the capitalpunishment of death also felt that any scope of the appellant being let outafter 14 years of imprisonment by applying the concept of remission beinggranted would not meet the ends of justice. With that view, this Courtexpressed its well thought out reasoning for adopting a course whereby suchheartless, hardened, money minded, lecherous, paid assassins though are notmeted out with the death penalty are in any case allowed to live their lifebut at the same time the common man and the vulnerable lot are protectedfrom their evil designs and treacherous behavior. Paragraph 56 can beusefully referred to understand the lucidity with which the whole issue wasunderstood and a standard laid down for others to follows:“56. But this leads to a more important question about the punishmentcommensurate to the appellant’s crime. The sentence of imprisonment for aterm of 14 years, that goes under the euphemism of life imprisonment isequally, if not more, unacceptable. As a matter of fact, Mr. Hegde informedus that the appellant was taken in custody on 28-3-1994 and submitted thatby virtue of the provisions relating to remission, the sentence of lifeimprisonment, without any qualification or further direction would, in alllikelihood, lead to his release from jail in the first quarter of 2009since he has already completed more than 14 years of incarceration. Thiseventuality is simply not acceptable to this Court. What then is theanswer? The answer lies in breaking this standardisation that, in practice,renders the sentence of life imprisonment equal to imprisonment for aperiod of no more than 14 years; in making it clear that the sentence oflife imprisonment when awarded as a substitute for death penalty would becarried out strictly as directed by the Court. This Court, therefore, mustlay down a good and sound legal basis for putting the punishment ofimprisonment for life, awarded as substitute for death penalty, beyond anyremission and to be carried out as directed by the Court so that it may befollowed, in appropriate cases as a uniform policy not only by this Courtbut also by the High Courts, being the superior courts in their respectiveStates. A suggestion to this effect was made by this Court nearly thirtyyears ago in Dalbir Singh v. State of Punjab. In para 14 of the judgmentthis Court held and observed as follows: (SCC p. 753) “14. The sentences of death in the present appeal are liable to be reducedto life imprisonment. We may add a footnote to the ruling in RajendraPrasad case. Taking the cue from the English legislation on abolition, wemay suggest that life imprisonment which strictly means imprisonment forthe whole of the men’s life but in practice amounts to incarceration for aperiod between 10 and 14 years may, at the option of the convicting court,be subject to the condition that the sentence of imprisonment shall last aslong as life lasts, where there are exceptional indications of murderousrecidivism and the community cannot run the risk of the convict being atlarge. This takes care of judicial apprehensions that unless physicallyliquidated the culprit may at some remote time repeat murder.”We think that it is time that the course suggested in Dalbir Singh shouldreceive a formal recognition by the Court.” (underlining is ours)Even after stating its grounds for the above conclusion, this Court alsonoticed the earlier decisions of this Court wherein such course wasadopted, namely, in Dalbir Singh and ors. v. State of Punjab - (1979) 3 SCC745, Subash Chander (supra), Shri Bhagavan v. State of Rajasthan - (2001) 6SCC 296, Ratan Singh (supra), Bhagirath v. Delhi Administration - (1985) 2SCC 580, Prakash Dhawal Khairnar (Patil) v. State of Maharashtra - (2002) 2SCC 35, Ram Anup Singh and Ors. v. State of Bihar - (2002) 6 SCC 686, Mohd.Munna v. Union of India and Ors. - (2005) 7 SCC 417, Jayawant DattatrayaSuryarao v. State of Maharashtra - (2001) 10 SCC 109, Nazir Khan and othersv. State of Delhi - (2003) 8 SCC 461, Ashok Kumar (supra) and Satpal aliasSadhu v. State of Haryana and ors.-(1992) 4 SCC 172.Having thus noted the need for carrying out a special term of imprisonmentto be imposed, based on sound legal principles, this Court also consideredsome of the decisions of this Court wherein the mandate of Section 433 Codeof Criminal Procedure was considered at length wherein it was held thatexercise of power under Section 433 was an executive discretion and theHigh Court in its review jurisdiction had no power to commute the sentenceimposed where a minimum sentence was provided. It was a converse situationwhich this Court held has no application and the submissions were rejectedas wholly misconceived. Thereafter, a detailed reference was made toSections 45, 53, 54, 55, 55A, 57 and other related provisions in the IndianPenal Code to understand the sentencing procedure prevalent in the Code andafter making reference to the provisions relating to grant of remission inSections 432, 433, 433A, 434 and 435 of Code of Criminal Procedureconcluded as under in paragraphs 91 and 92:“91. The legal position as enunciated in Pandit Kishori Lal, Gopal VinayakGodse, Maru Ram, Ratan Singh and Shri Bhagwan and the unsound way in whichremission is actually allowed in cases of life imprisonment make out a verystrong case to make a special category for the very few cases where thedeath penalty might be substituted by the punishment of imprisonment forlife or imprisonment for a term in excess of fourteen years and to put thatcategory beyond the application of remission.92. The matter may be looked at from a slightly different angle. The issueof sentencing has two aspects. A sentence may be excessive and unduly harshor it may be highly disproportionately inadequate. When an appellant comesto this Court carrying a death sentence awarded by the trial court andconfirmed by the High Court, this Court may find, as in the present appeal,that the case just falls short of the rarest of the rare category and mayfeel somewhat reluctant in endorsing the death sentence. But at the sametime, having regard to the nature of the crime, the Court may strongly feelthat a sentence of life imprisonment subject to remission normally worksout to a term of 14 years would be grossly disproportionate and inadequate.What then should the Court do? If the Court’s option is limited only to twopunishments, one a sentence of imprisonment, for all intents and purposes,of not more than 14 years and the other death, the Court may feel temptedand find itself nudged into endorsing the death penalty. Such a coursewould indeed be disastrous. A far more just, reasonable and proper coursewould be to expand the options and to take over what, as a matter of fact,lawfully belongs to the Court i.e. the vast hiatus between 14 years’imprisonment and death. It needs to be emphasised that the Court would takerecourse to the expanded option primarily because in the facts of the case,the sentence of 14 years’ imprisonment would amount to no punishment atall.” (Emphasis added)Thus on a detailed reference to Swamy Shraddananda (supra) judgment, it canbe straight away held in our view, that no more need be stated. But we wishto make reference to certain paragraphs from the concurring judgment ofJustice Fazal Ali in Maru Ram (supra), pages 1251, 1252 and 1256 arerelevant which are as under:“The dominant purpose and the avowed object of the legislature inintroducing Section 433-A in the Code of Criminal Procedure unmistakablyseems to be to secure a deterrent punishment for heinous offences committedin a dastardly, brutal or cruel fashion or offences committed against thedefence or security of the country. It is true that there appears to be amodern trend of giving punishment a colour of reformation so that stressmay be laid on the reformation of the criminal rather than his confinementin jail which is an ideal objective. At the same time, it cannot begainsaid that such an objective cannot be achieved without mustering thenecessary facilities, the requisite education and the appropriate climatewhich must be created to foster a sense of repentance and penitence in acriminal so that he may undergo such a mental or psychological revolutionthat he realizes the consequences of playing with human lives. In the worldof today and particularly in our country, this ideal is yet to be achievedand, in fact, with all our efforts it will take us a long time to reachthis sacred goal. xxx xxx xxxThe question, therefore, is — should the country take the risk of innocentlives being lost at the hands of criminals committing heinous crimes in theholy hope or wishful thinking that one day or the other, a criminal,however dangerous or callous he may be, will reform himself. Valmikis arenot born everyday and to expect that our present generation, with theprevailing social and economic environment, would produce Valmikis dayafter day is to hope for the impossible.xxx xxx xxxxxx xxx xxxTaking into account the modern trends in penology there are very rare caseswhere the courts impose a sentence of death and even if in some cases wheresuch sentences are given, by the time the case reaches this Court, a bareminimum of the cases are left where death sentences are upheld. Such casesare only those in which imposition of a death sentence becomes animperative necessity having regard to the nature and character of theoffences, the antecedents of the offender and other factors referred to inthe Constitution Bench judgment of this Court in Bachan Singh v. State ofPunjab. In these circumstances, I am of the opinion that the Parliament inits wisdom chose to act in order to prevent criminals committing heinouscrimes from being released through easy remissions or substituted form ofpunishments without undergoing at least a minimum period of imprisonment offourteen years which may in fact act as a sufficient deterrent which mayprevent criminals from committing offences. In most parts of our country,particularly in the north, cases are not uncommon where even a personsentenced to imprisonment for life and having come back after earning anumber of remissions has committed repeated offences. The mere fact that along-term sentence or for that matter a sentence of death has not produceduseful results cannot support the argument either for abolition of deathsentence or for reducing the sentence of life imprisonment from 14 years tosomething less. The question is not what has happened because of theprovisions of the Penal Code but what would have happened if deterrentpunishments were not given. In the present distressed and disturbedatmosphere we feel that if deterrent punishment is not resorted to, therewill be complete chaos in the entire country and criminals will be letloose endangering the lives of thousands of innocent people of our country.In spite of all the resources at its hands, it will be difficult for theState to protect or guarantee the life and liberty of all the citizens, ifcriminals are let loose and deterrent punishment is either abolished ormitigated. Secondly, while reformation of the criminal is only one side ofthe picture, rehabilitation of the victims and granting relief from thetortures and sufferings which are caused to them as a result of theoffences committed by the criminals is a factor which seems to have beencompletely overlooked while defending the cause of the criminals forabolishing deterrent sentences. Where one person commits three murders itis illogical to plead for the criminal and to argue that his life should bespared, without at all considering what has happened to the victims andtheir family. A person who has deprived another person completely of hisliberty forever and has endangered the liberty of his family has no rightto ask the court to uphold his liberty. Liberty is not a one-sided concept,nor does Article 21 of the Constitution contemplate such a concept. If aperson commits a criminal offence and punishment has been given to him by aprocedure established by law which is free and fair and where the accusedhas been fully heard, no question of violation of Article 21 arises whenthe question of punishment is being considered. Even so, the provisions ofthe Code of Criminal Procedure of 1973 do provide an opportunity to theoffender, after his guilt is proved, to show circumstances under which anappropriate sentence could be imposed on him. These guarantees sufficientlycomply with the provisions of Article 21. Thus, it seems to me that whileconsidering the problem of penology we should not overlook the plight ofvictimology and the sufferings of the people who die, suffer or are maimedat the hands of criminals.” (Emphasis added)The above chiseled words of the learned Judge throw much light on thesentencing aspect of different criminals depending upon the nature ofcrimes committed by them. Having noted the above observations of thelearned Judge which came to be made about three and a half decades ago, wefind that what was anticipated by the learned Judge has now come true andtoday we find that criminals are let loose endangering the lives of severalthousand innocent people in our country. Such hardened criminals are in thegood books of several powerful men of ill-gotten wealth and power mongersfor whom they act as paid assassins and Goondas. Lawlessness is the orderof the day. Having got the experience of dealing with cases involving majorcrimes, we can also authoritatively say that in most of the cases, even thekith and kin, close relatives, friends, neighbours and passersby who happento witness the occurrence are threatened and though they initially givestatements to the police, invariably turn hostile, apparently because ofthe threat meted out to them by the hardened and professional criminals andgangsters. As was anticipated by the learned Judge, it is the hard realitythat the State machinery is not able to protect or guarantee the life andliberty of common man. In this scenario, if any further lenience is shownin the matter of imposition of sentence, at least in respect of capitalpunishment or life imprisonment, it can only be said that that will onlylead to further chaos and there will be no Rule of Law, but only anarchywill rule the country enabling the criminals and their gangs to dictateterms. Therefore, any sympathy shown will only amount to a misplaced onewhich the courts cannot afford to take. Applying these well thought outprinciples, it can be said that the conclusions drawn by this Court inSwamy Shraddananda (supra) is well founded and can be applied withoutanything more, at least until as lamented by Justice Fazal Ali thenecessary facilities, the requisite education and the appropriate climatecreated to foster a sense of repentance and penitence in a criminal isinducted so that he may undergo such a mental or psychological revolutionthat he realizes the consequence of playing with human lives. It is alsoappropriate where His Lordship observed that in the world of today andparticularly in our country, this ideal is yet to be achieved and that itwill take a long time to reach that goal.Therefore, in the present juncture, when we take judicial notice of thecrime rate in our country, we find that criminals of all types of crimesare on the increase. Be it white collar crimes, vindictive crimes, crimesagainst children and women, hapless widow, old aged parents, sexualoffences, retaliation murder, planned and calculated murder, through paidassassins, gangsters operating in the developed cities indulging in killingfor a price, kidnapping and killing for ransom, killing by terrorists andmilitants, organized crime syndicates, etc., are the order of the day.While on the one side peace loving citizens who are in the majority aresolely concerned with their peaceful existence by following the Rule of Lawand aspire to thrive in the society anticipating every protection andsupport from the governance of the State and its administration, it iscommon knowledge, as days pass on it is a big question mark whether onewill be able to lead a normal peaceful life without being hindered at thehands of such unlawful elements, who enjoy in many cases the support ofvery many highly placed persons. In this context, it will be relevant tonote the PRECEPTS OF LAW which are: to live honourably, to injure no otherman and to render everyone his due. There are murders and other seriousoffences orchestrated for political rivalry, business rivalry, familyrivalry, etc., which in the recent times have increased manifold and inthis process, the casualty are the common men whose day to day functioningis greatly prejudiced and people in the helm of affairs have no concern forthem. Even those who propagate for lessening the gravity of imposition ofsevere punishment are unmindful of such consequences and are only keen toindulge in propagation of rescuing the convicts from being meted out withappropriate punishments. We are at a loss to understand as to for whatreason or purpose such propagation is carried on and what benefit thesociety at large is going to derive.Faced with the above situation prevailing in the Society, it is also commonknowledge that the disposal of cases by Courts is getting delayed forvariety of reasons. Major among them are the disproportionate Judges:population ratio and lack of proper infrastructure for the institution ofjudiciary. Sometime in 2009 when the statistics was taken it was foundthat the Judges:population ratio was 8 Judges for 1 million population inIndia, whereas it was 50 Judges per million population in westerncountries. The above factors also added to the large pendency of criminaland civil cases in the Courts which results in abnormal delay in the guiltygetting punished then and there. In the normal course, it takes a minimumof a year for a murder case being tried and concluded, while the appealarising out of such concluded trial at the High Court level takes not lessthan 5 to 10 years and when it reaches this Court, it takes a minimum ofanother 5 years for the ultimate conclusion. Such enormous delay in thedisposal of cases also comes in handy for the criminals to indulge in moreand more of such heinous crimes and in that process, the interest of thecommon man is sacrificed.Keeping the above hard reality in mind, when we examine the issue, thequestion is ‘whether as held in Shraddananda (supra), a special category ofsentence; instead of death; for a term exceeding 14 years and putting thatcategory beyond application of remission is good in law? When we analyzethe issue in the light of the principles laid down in very many judgmentsstarting from Godse (supra), Maru Ram (supra), Sambha Ji Krishan Ji(supra), Ratan Singh (supra), it has now come to stay that when inexceptional cases, death penalty is altered as life sentence, that wouldonly mean rest of one’s life span.In this context, the principles which weighed with this Court in MachhiSingh (supra) to inflict the capital punishment of death were the manner ofcommission of murder, motive for commission of murder, anti-social orsocially abhorrent nature of the crime, magnitude of crime and the targetedpersonality of victim of murder. The said five categories cannot be heldto be exhaustive. It cannot also be said even if a convict falls under oneor the other of the categories, yet, this Court has in numerable causes bygiving adequate justification to alter the punishment from ‘Death’ to‘Life’. Therefore, the law makers entrusted the task of analyzing andappreciating the gravity of the offence committed in such cases with theinstitution of judiciary reposing very high amount of confidence and trust. Therefore, when in a case where the judicial mind after weighing the prosand cons of the crime committed, in a golden scale and keeping in mind theparamount interest of the society and to safeguard it from the unmindfulconduct of such offenders, takes a decision to ensure that such offendersdon’t deserve to be let loose in the society for a certain period, can itbe said that such a decision is impermissible in law. In the firstinstance, as noted earlier, life sentence in a given case only means theentirety of the life of a person unless the context otherwise stipulates.Therefore, where the life sentence means, a person’s life span inincarnation, the Court cannot be held to have in anyway violated the law indoing so. Only other question is how far the Court will be justified instipulating a condition that such life imprisonment will have to be servedby an offender in jail without providing scope for grant of any remissionby way of statutory executive action. As has been stated by this Court inMaru Ram (supra) by the Constitution Bench, that the Constitutional powerof remission provided under Articles 72 and 161 of the Constitution willalways remain untouched, inasmuch as, though the statutory power ofremission, etc., as compared to Constitution power under Articles 72 and161 looks similar, they are not the same. Therefore, we confine ourselvesto the implication of statutory power of remission, etc., provided underthe Criminal Procedure Code entrusted with the Executive of the State asagainst the well thought out judicial decisions in the imposition ofsentence for the related grievous crimes for which either capitalpunishment or a life sentence is provided for. When the said distinctioncan be clearly ascertained, it must be held that there is a vast differencebetween an executive action for the grant of commutation, remission etc.,as against a judicial decision. Time and again, it is held that judicialaction forms part of the basic structure of the Constitution. We can statewith certain amount of confidence and certainty, that there will be nomatch for a judicial decision by any of the authority other thanConstitutional Authority, though in the form of an executive action, havingregard to the higher pedestal in which such Constitutional Heads are placedwhose action will remain unquestionable except for lack of certain basicfeatures which has also been noted in the various decisions of this Courtincluding Maru Ram (supra).Though we are not attempting to belittle the scope and ambit of executiveaction of the State in exercise of its power of statutory remission, whenit comes to the question of equation with a judicial pronouncement, it mustbe held that such executive action should give due weight and respect tothe latter in order to achieve the goals set in the Constitution. It is notto be said that such distinctive role to be played by the Executive of theState would be in the nature of a subordinate role to the judiciary. Inthis context, it can be said without any scope of controversy that when byway of a judicial decision, after a detailed analysis, having regard to theproportionality of the crime committed, it is decided that the offenderdeserves to be punished with the sentence of life imprisonment (i.e.) forthe end of his life or for a specific period of 20 years, or 30 years or 40years, such a conclusion should survive without any interruption.Therefore, in order to ensure that such punishment imposed, which islegally provided for in the Indian Penal Code read along with CriminalProcedure Code to operate without any interruption, the inherent power ofthe Court concerned should empower the Court in public interest as well asin the interest of the society at large to make it certain that suchpunishment imposed will operate as imposed by stating that no remission orother such liberal approach should not come into effect to nullify suchimposition.In this context, the submission of the learned Solicitor General on theinterpretation of Section 433-A assumes significance. His contention wasthat under Section 433-A what is prescribed is only the minimum and,therefore, there is no restriction to fix it at any period beyond 14 yearsand upto the end of one’s life span. We find substance in the saidsubmission. When we refer to Section 433-A, we find that the expressionused in the said Section for the purpose of grant of remission relating toa person convicted and directed to undergo life imprisonment, it stipulatesthat “such person shall not be released from prison unless he had served atleast fourteen years of imprisonment.” Therefore, when the minimumimprisonment is prescribed under the Statute, there will be everyjustification for the Court which considers the nature of offence for whichconviction is imposed on the offender for which offence the extent ofpunishment either death or life imprisonment is provided for, it should beheld that there will be every justification and authority for the Court toensure in the interest of the public at large and the society, that suchperson should undergo imprisonment for a specified period even beyond 14years without any scope for remission. In fact, going by the caption ofthe said Section 433-A, it imposes a restriction on powers of remission orcommutation in certain cases. For a statutory authority competent toconsider a case for remission after the imposition of punishment by Courtof law it can be held so, then a judicial forum which has got a wider scopefor considering the nature of offence and the conduct of the offenderincluding his mens rea to bestow its judicial sense and direct that suchoffender does not deserve to be released early and required to be kept inconfinement for a longer period, it should be held that there will be nodearth in the Authority for exercising such power in the matter ofimposition of the appropriate sentence befitting the criminal act committedby the convict. In this context, the concurring judgment of Justice FazalAli in Maru Ram (supra), as stated in pages 1251, 1251 and 1258 on thesentencing aspect noted in earlier paragraphs requires to be kept in view.There is one other valid ground for our above conclusion. In paragraph 46of this judgment, we have noted the provision in the Penal Code whichprovides for imposing the punishment of death. There are also severaldimensions to this view to be borne in mind. In this context, it will beworthwhile to refer to the fundamental principles which weighed with ourConstitution makers while entrusting the highest power with the head of theState, namely, the President in Article 72 of the Constitution. In theleading judgment of the Constitution Bench in Kehar Singh v. Union of India- (1989) 1 SCC 204, this Court prefaced its judgment in paragraph 7highlighting the said principle in the following words:“7.The Constitution of India, in keeping with modern constitutionalpractice, is a constitutive document, fundamental to the governance of thecountry, whereby, according to accepted political theory, the people ofIndia have provided a constitutional polity consisting of certain primaryorgans, institutions and functionaries to exercise the powers provided inthe Constitution. All power belongs to the people, and it is entrusted bythem to specified institutions and functionaries with the intention ofworking out, maintaining and operating a constitutional order. ThePreambular statement of the Constitution begins with the significantrecital:“We, the people of India, having solemnly resolved to constitute India intoa Sovereign Socialist Secular Democratic Republic ... do hereby adopt,enact and give to ourselves this Constitution.”To any civilised society, there can be no attributes more important thanthe life and personal liberty of its members. That is evident from theparamount position given by the courts to Article 21 of the Constitution.These twin attributes enjoy a fundamental ascendancy over all otherattributes of the political and social order, and consequently, theLegislature, the Executive and the Judiciary are more sensitive to themthan to the other attributes of daily existence. The deprivation ofpersonal liberty and the threat of the deprivation of life by the action ofthe State is in most civilised societies regarded seriously and, recourse,either under express constitutional provision or through legislativeenactment is provided to the judicial organ. But, the fallibility of humanjudgment being undeniable even in the most trained mind, a mind resourcedby a harvest of experience, it has been considered appropriate that in thematter of life and personal liberty, the protection should be extended byentrusting power further to some high authority to scrutinise the validityof the threatened denial of life or the threatened or continued denial ofpersonal liberty. The power so entrusted is a power belonging to the peopleand reposed in the highest dignitary of the State. In England, the power isregarded as the royal prerogative of pardon exercised by the Sovereign,generally through the Home Secretary. It is a power which is capable ofexercise on a variety of grounds, for reasons of State as well as thedesire to safeguard against judicial error. It is an act of grace issuingfrom the Sovereign. In the United States, however, after the founding ofthe Republic, a pardon by the President has been regarded not as a privateact of grace but as a part of the constitutional scheme. In an opinion,remarkable for its erudition and clarity, Mr.Justice Holmes, speaking forthe Court in W.I. Biddle v. Vuco Perovich enunciated this view, and it hassince been affirmed in other decisions. The power to pardon is a part ofthe constitutional scheme, and we have no doubt, in our mind, that itshould be so treated also in the Indian Republic. It has been reposed bythe people through the Constitution in the Head of the State, and enjoyshigh status. It is a constitutional responsibility of great significance,to be exercised when occasion arises in accordance with the discretioncontemplated by the context. It is not denied, and indeed it has beenrepeatedly affirmed in the course of argument by learned counsel, Shri RamJethmalani and Shri Shanti Bhushan, appearing for the petitioners that thepower to pardon rests on the advice tendered by the Executive to thePresident, who subject to the provisions of Article 74(1) of theConstitution, must act in accordance with such advice. We may point outthat the Constitution Bench of this Court held in Maru Ram v. Union ofIndia, that the power under Article 72 is to be exercised on the advice ofthe Central Government and not by the President on his own, and that theadvice of the Government binds the Head of the State.” (Underlining is ours)Again in paragraphs 8 and 10, this Court made a detailed analysis of theeffect of the grant of pardon or remission vis-à-vis the judicialpronouncement and explained the distinguishing features in their respectivefields in uncontroverted terms. Paragraphs 8 and 10 can also be usefullyextracted which are as under:8. To what areas does the power to scrutinise extend? In Ex parte WilliamWells the United States Supreme Court pointed out that it was to be used“particularly when the circumstances of any case disclosed suchuncertainties as made it doubtful if there should have been a conviction ofthe criminal, or when they are such as to show that there might be amitigation of the punishment without lessening the obligation ofvindicatory justice”. And in Ex parte Garland decided shortly after theCivil War, Mr. Justice Field observed:“The inquiry arises as to the effect and operation of a pardon, and on thispoint all the authorities concur. A pardon reaches both the punishmentprescribed for the offence and the guilt of the offender; and when thepardon is full, it releases the punishment and blots out of existence theguilt, so that in the eye of the law the offender is as innocent as if hehad never committed the offence … if granted after conviction, it removesthe penalties and disabilities and restores him to all his civil rights….”The classic exposition of the law is to be found in Ex parte PhilipGrossman where Chief Justice Taft explained:“Executive clemency exists to afford relief from undue harshness or evidentmistake in the operation or the enforcement of the criminal law. Theadministration of justice by the courts is not necessarily always wise orcertainly considerate of circumstances which may properly mitigate guilt.To afford a remedy, it has always been thought essential in populargovernments, as well as in monarchies, to vest in some other authority thanthe courts power to ameliorate or avoid particular criminal judgments.”10. We are of the view that it is open to the President in the exercise ofthe power vested in him by Article 72 of the Constitution to scrutinise theevidence on the record of the criminal case and come to a differentconclusion from that recorded by the court in regard to the guilt of, andsentence imposed on, the accused. In doing so, the President does not amendor modify or supersede the judicial record. The judicial record remainsintact, and undisturbed. The President acts in a wholly different planefrom that in which the Court acted. He acts under a constitutional power,the nature of which is entirely different from the judicial power andcannot be regarded as an extension of it. And this is so, notwithstandingthat the practical effect of the Presidential act is to remove the stigmaof guilt from the accused or to remit the sentence imposed on him. In U.S.v. Benz Sutherland, J., observed:The judicial power and the executive power over sentences are readilydistinguishable. To render judgment is a judicial function. To carry thejudgment into effect is an executive function. To cut short a sentence byan act of clemency is an exercise of executive power which abridges theenforcement of the judgment, but does not alter it qua a judgment. Toreduce a sentence by amendment alters the terms of the judgment itself andis a judicial act as much as the imposition of the sentence in the firstinstance.The legal effect of a pardon is wholly different from a judicialsupersession of the original sentence. It is the nature of the power whichis determinative. In Sarat Chandra Rabha v. Khagendranath Nath, Wanchoo,J., speaking for the Court addressed himself to the question whether theorder of remission by the Governor of Assam had the effect of reducing thesentence imposed on the appellant in the same way in which an order of anappellate or revisional criminal court has the effect of reducing thesentence passed by a trial court, and after discussing the law relating tothe power to grant pardon, he said:“Though, therefore, the effect of an order of remission is to wipe out thatpart of the sentence of imprisonment which has not been served out and thusin practice to reduce the sentence to the period already undergone, in lawthe order of remission merely means that the rest of the sentence need notbe undergone, leaving the order of conviction by the court and the sentencepassed by it untouched. In this view of the matter the order of remissionpassed in this case though it had the effect that the appellant wasreleased from jail before he had served the full sentence of three years’imprisonment and had actually served only about sixteen months’imprisonment, did not in any way affect the order of conviction andsentence passed by the court which remained as it was.and again:Now where the sentence imposed by a trial court is varied by way ofreduction by the appellate or revisional court, the final sentence is againimposed by a court; but where a sentence imposed by a court is remitted inpart under Section 401 of the Code of Criminal Procedure that has not theeffect in law of reducing the sentence imposed by the court, though ineffect the result may be that the convicted person suffers lessimprisonment than that imposed by the court. The order of remission affectsthe execution of the sentence imposed by the court but does not affect thesentence as such, which remains what it was in spite of the order ofremission.”It is apparent that the power under Article 72 entitles the President toexamine the record of evidence of the criminal case and to determine forhimself whether the case is one deserving the grant of the relief fallingwithin that power. We are of opinion that the President is entitled to gointo the merits of the case notwithstanding that it has been judiciallyconcluded by the consideration given to it by this Court. (Underlining is ours)Having thus noted the well thought out principles underlying the exerciseof judicial power and the higher Executive power of the State withoutaffecting the core of the judicial pronouncements, we wish to refer to somestatistics noted in that very judgment in paragraph 17 as to the number ofconvicts hanged as compared to the number of murders that had taken placeduring the relevant period, namely, between 1974 to 1978. It was foundthat there were 29 persons hanged during that period while the number ofmurders was noted as 85,000. It reveals that in a period of almost fouryears as against the huge number of victims, the execution of death penaltywas restricted to the minimal i.e. it was 0.034%. We only point out thatgreat care and caution weighed with the Courts and the Executive to ensurethat under no circumstance an innocent is subjected to the capitalpunishment even if the real culprit may in that process be benefited.After all in a civilized society, the rule of law should prevail and theright of a human being should not be snatched away even in the process ofdecision making which again is entrusted with another set of human beingsas they are claimed to be experts and well informed legally as well as aremen in the know of things.Keeping the above principles in mind, when we make a study of the vexedquestion, we find that the law makers have restricted the power to imposedeath sentence to only 12 Sections in the Penal Code, namely, Sections120B(1), 121, 132, 194, 195A, 302, 305, 307(2nd para), 376A, 376E, 396 and364A. Apart from the Penal Code such punishments of death are provided incertain other draconian laws like TADA, MCOCA etc. Therefore, it was heldby this Court in umpteen numbers of judgments that death sentence is anexception rather than a rule. That apart, even after applying such greatprecautionary prescription when the trial Courts reach a conclusion toimpose the maximum punishment of death, further safe guards are providedunder the Criminal Procedure Code and the Special Acts to make a still moreconcretized effort by the higher Courts to ensure that no stone is leftunturned for the imposition of such capital punishments.In this context, we can make specific reference to the provisions containedin Chapter XXVIII of Code of Criminal Procedure wherein Sections 366 to371, are placed for the relevant consideration to be mandatorily made whena death penalty is imposed by the trial Court. Under Section 366, whenevera Sessions Court passes a sentence of death, the proceedings should bemandatorily submitted to the High Court and the sentence of death isautomatically suspended until the same is confirmed by the High Court.Under Chapter XXVIII of the Code, even while exercising the process ofconfirmation by the High Court, very many other safe guards such as,further enquiries, letting in additional evidence, ordering a new trial onthe same or amended charge or amend the conviction or convict the accusedof any other offence of lesser degree is provided for. Further in order toensure meticulous and high amount of precaution to be undertaken, theconsideration of such confirmation process is to be carried out by aminimum of two Judges of the High Court. In the event of difference ofopinion amongst them, the case is to be placed before a third Judge asprovided under Section 392 of the Code. Statutory prescriptions apart, byway of judicial pronouncements, it has been repeatedly held that impositionof death penalty should be restricted to in the rarest of rare cases againto ensure that the Courts adopt a precautionary principle of very highorder when it comes to the question of imposition of death penalty.Again keeping in mind the above statutory prescriptions relating toimposition of capital punishment or the alternate punishment of lifeimprisonment, meaning thereby till the end of the convict’s life, we wishto analyze the scope and extent to which such alternate punishment can bedirected to be imposed. In the first place, it must be noted that the lawmakers themselves have bestowed great care and caution when they decided toprescribe the capital punishment of death and its alternate to lifeimprisonment, restricted the scope for such imposition to the least minimumof 12 instances alone. As has been noted by us earlier, by way ofinterpretation process, this Court has laid down that such imposition ofcapital punishment can only be in the rarest of rare cases. In the laterdecisions, as the law developed, this court laid down and quoted very manycircumstances which can be said to be coming within the four corners of thesaid rarest of rare principle, though such instances are not exhaustive.The above legal principle come to be introduced in the first instance inthe decision reported as Bachan Singh v. State of Punjab - AIR 1980 SC 898. It was held as under:“151……… A sentence of death is the extreme penalty of law and it is butfair that when a Court awards that sentence in a case where the alternativesentence of imprisonment for life is also available, it should give specialreasons in support of the sentence…..207: There are numerous other circumstances justifying the passing of thelighter sentence; as there are countervailing circumstances of aggravation."We cannot obviously feed into a judicial computer all such situationssince they are astrological imponderables in an imperfect and undulatingsociety." Nonetheless, it cannot be over-emphasised that the scope andconcept of mitigating factors in the area of death penalty must receive aliberal and expansive construction by the courts in accord with thesentencing policy writ large in Section 354(3). Judges should never bebloodthirsty. Hanging of murderers has never been too good for them. Factsand figures albeit incomplete, furnished by the Union of India, show thatin the past Courts have inflicted the extreme penalty with extremeinfrequency - a fact which attests to the caution and compassion which theyhave always brought to bear on the exercise of their sentencing discretionin so grave a matter. It is, therefore, imperative to voice the concernthat courts, aided by the broad illustrative guidelines indicated by us,will discharge the onerous function with evermore scrupulous care andhumane concern, directed along the highroad of legislative policy outlinedin Section 354(3), viz., that for persons convicted of murder, lifeimprisonment is the rule and death sentence an exception. A real andabiding concern for the dignity of human life postulates resistance totaking a life through law's instrumentality. That ought not to be done savein the rarest of rare cases when the alternative option is unquestionablyforeclosed.Subsequently, it was elaborated in the decision reported as Machhi Singhand Others v. State of Punjab – AIR 1983 SC 957 it was held as under:“32: The reasons why the community as a whole does not endorse thehumanistic approach reflected in "death sentence-in-no-case" doctrine arenot far to seek. In the first place, the very humanistic edifice isconstructed on the foundation of "reverence for life" principle. When amember of the community violates this very principle by killing anothermember, the society may not feel itself bound by the shackles of thisdoctrine. Secondly, it has to be realized that every member of thecommunity is able to live with safety without his or her own life beingendangered because of the protective arm of the community and on account ofthe rule of law enforced by it. The very existence of the rule of law andthe fear of being brought to book operates as a deterrent to those who haveno scruples in killing others if it suits their ends. Every member of thecommunity owes a debt to the community for this protection. Wheningratitude is shown instead of gratitude by 'Killing' a member of thecommunity which protects the murderer himself from being killed, or whenthe community feels that for the sake of self preservation the killer hasto be killed, the community may well withdraw the protection by sanctioningthe death penalty. But the community will not do so in every case. It maydo so (in rarest of rare cases) when its collective conscience is soshocked that it will expect the holders of the judicial power centre toinflict death penalty irrespective of their personal opinion as regardsdesirability or otherwise of retaining death penalty. The community mayentrain such a sentiment when the crime is viewed from the platform of themotive for, or the manner of commission of the crime, or the anti-social orabhorrent nature of the crime, such as for instance:I Manner of Commission of MurderWhen the murder is committed in an extremely brutal, grotesque, diabolical,revolting or dastardly manner so as to arouse intense and extremeindignation of the community. For instance,(i) when the house of the victim is set aflame with the end in view toroast him alive in the house.(ii) when the victim is subjected to inhuman acts of torture or cruelty inorder to bring about his or her death.(iii) when the body of the victim is cut into pieces or his body isdismembered in a fiendish manner.II. Motive for commission of murderWhen the murder is committed for a motive which evinces total depravity andmeanness. For instance when (a) a hired assassin commits murder for thesake of money or reward (b) a cold-blooded murder is committed with adeliberate design in order to inherit property or to gain control overproperty of a ward or a person under the control of the murderer or vis-a-vis whom the murderer is in a dominating position or in a position oftrust, or (c ) a murder is committed in the course for betrayal of themotherland.III. Anti-social or socially abhorrent nature of the crime(a) When murder of a member of a Scheduled Caste or minority communityetc., is committed not for personal reasons but in circumstances whicharouse social wrath. For instance when such a crime is committed in orderto terrorize such persons and frighten them into fleeing from a place or inorder to deprive them of, or make them surrender, lands or benefitsconferred on them with a view to reverse past injustices and in order torestore the social balance.(b) In cases of “bride burning” and what are known as “dowry deaths” orwhen murder is committed in order to remarry for the sake of extractingdowry once again or to marry another woman on account of infatuation.IV. Magnitude of crimeWhen the crime is enormous in proportion. For instance when multiplemurders say of all or almost all the members of a family or a large numberof persons of a particular caste, community, or locality, are committed.V. Personality of victim of murderWhen the victim of murder is (a) an innocent child who could not have orhas not provided even an excuse, much less a provocation, for murder (b) ahelpless woman or a person rendered helpless by old age or infirmity (c)when the victim is a person vis-a-vis whom the murderer is in a position ofdomination or trust (d) when the victim is a public figure generally lovedand respected by the community for the services rendered by him and themurder is committed for political or similar reasons other than personalreasons.33: In this background the guidelines indicated in Bachan Singh's case(supra) will have to be culled out and applied to the facts of eachindividual case where the question of imposing of death sentences arises.The following propositions emerge from Bachan Singh's case:(i) the extreme penalty of death need not be inflicted except in gravestcases of extreme culpability;(ii) Before opting for the death penalty the circumstances of the'offender' also require to be taken into consideration alongwith thecircumstances of the 'crime'.(iii)Life imprisonment is the rule and death sentence is an exception. Inother words death sentence must be imposed only when life imprisonmentappears to be an altogether inadequate punishment having regard to therelevant circumstances of the crime, and provided, and only provided theoption to impose sentence of imprisonment for life cannot beconscientiously exercised having regard to the nature and circumstances ofthe crime and all the relevant circumstances.(iv) A balance sheet of aggravating and mitigating circumstances has to bedrawn up and in doing so the mitigating circumstances has to be accordedfull weightage and a just balance has to be struck between the aggravatingand the mitigating circumstances before the option is exercised.34: In order to apply these guidelines inter-alia the following questionsmay be asked and answered:(a) Is there something uncommon about the crime which renders sentence ofimprisonment for life inadequate and calls for a death sentence?(b) Are the circumstances of the crime such that there is no alternativebut to impose death sentence even after according maximum weightage to themitigating circumstances which speak in favour of the offender ?If upon taking an overall global view of all the circumstances in the lightof the aforesaid proposition and taking into account the answers to thequestions posed here in above, the circumstances of the case are such thatdeath sentence is warranted, the court would proceed to do so.” (Emphasis added)These revered principles were subsequently adopted or explained or upheldin following cases reported as Santosh Kumar Satishbhushan Bariyar v. Stateof Maharashtra – 2009 (6) SC 498, Aloke Nath Dutta (supra), Prajeet KumarSingh v. State of Bihar - (2008) 4 SCC 434, B.A. Umesh v. RegistrarGeneral, High Court of Karnataka - (2011) 3 SCC 85, State of Rajasthan v.Kashi Ram - (2006) 12 SCC 254 and Atbir v. Government of NCT of Delhi -(2010) 9 SCC 1 and also in a peculiar case of D.K. Basu v. State of WestBengal – AIR 1997 SC 610 where this Court took the view that custodialtorture and consequential death in custody was an offence which fell in thecategory of the rarest of rare cases. While specifying the reasons insupport of such decision, the Court awarded death penalty in that case.In a recent decision of this Court reported as Vikram Singh alias Vicky &another v. Union of India & others – AIR 2015 SC 3577 this Court hadoccasion to examine the sentencing aspect. That case arose out of an orderpassed by the High Court in a writ petition moved before the High Court ofPunjab and Haryana praying for a Mandamus to strike down Section 364A ofIPC and for an order restraining the execution of death sentence awarded tothe appellant therein. A Division Bench of the High Court of Punjab andHaryana while dismissing the writ petition took the view that the questionwhether Section 364A of IPC was attracted to the case at hand and whether aperson found guilty of an offence punishable under the provision could besentenced to death was not only raised by the appellant therein as anargument before the High Court in an appeal filed by them against theirconviction and sentence imposed which was noticed and found against them.The High Court dismissed the writ petition by noting the regular appealfiled earlier by the appellant therein against the conviction and sentencewhich was also upheld by this Court while dismissing the subsequent writpetition. While upholding the said judgment of the High Court on thesentencing aspect, this Court has noticed as under in paragraph 49:“49. To sum up:Punishments must be proportionate to the nature and gravity of the offencesfor which the same are prescribed.Prescribing punishments is the function of the legislature and not theCourts.The legislature is presumed to be supremely wise and aware of the needs ofthe people and the measures that are necessary to meet those needs.Courts show deference to the legislative will and wisdom and are slow inupsetting the enacted provisions dealing with the quantum of punishmentprescribed for different offences.Courts, however, have the jurisdiction to interfere when the punishmentprescribed is so outrageously disproportionate to the offence or so inhumanor brutal that the same cannot be accepted by any standard of decency.Absence of objective standards for determining the legality of theprescribed sentence makes the job of the Court reviewing the punishmentdifficult.Courts cannot interfere with the prescribed punishment only because thepunishment is perceived to be excessive.In dealing with questions of proportionality of sentences, capitalpunishment is considered to be different in kind and degree from sentenceof imprisonment. The result is that while there are several instances whencapital punishment has been considered to be disproportionate to theoffence committed, there are very few and rare cases of sentences ofimprisonment being held disproportionate.”When we are on the question of sentencing aspect we feel it appropriate tomake a reference to the principles culled out in the said judgment.Having thus noted the serious analysis made by this Court in the impositionof Death sentence and the principle of rarest of rare cases formulated inthe case of Bachan Singh (supra) which was subsequently elaborated inMachhi Singh (supra), followed in the later decisions and is being appliedand developed, we also wish to note some of the submissions of the counselfor the respondents by relying upon the report of Justice MalimathCommittee on Reform in Criminal Justice System submitted in 2003 and thereport of Justice Verma’s Committee on Amendment to Criminal Law and theintroduction of some of the punishments in the Penal Code, namely, Sections370(6), 376A, 376D and 376E which prescribe the punishment of imprisonmentfor life which shall mean imprisonment for the remainder of that persons’natural life. It was further contended that some special Acts like TADAspecifically prescribe that the imposition of such punishment shall remainand no remission can be considered. The submission was made to suggest thatin law when a punishment is prescribed it is only that punishment that canbe inflicted and nothing more. In other words, when the penal provisionprescribes the punishment of Death or Life, the Court should at theconclusion of the trial or at its confirmation, should merely impose thepunishment of Death or Life and nothing more. Though the submission looksattractive, on a deeper scrutiny, we find that the said submission has noforce. As has been noted by us in the earlier paragraphs where we havediscussed the first part of this question, namely, what is meant by lifeimprisonment, we have found an answer based on earlier Constitution Benchdecisions of this Court that life imprisonment means rest of one’s life whois imposed with the said punishment. In the report relied upon and thepractices followed in various other countries were also highlighted tosupport the above submission. Having thus considered the submissions, withutmost care, we find that it is nowhere prescribed in the Penal Code or forthat matter any of the provisions where Death Penalty or Life Imprisonmentis provided for, any prohibition that the imprisonment cannot be imposedfor any specific period within the said life span. When life imprisonmentmeans the whole life span of the person convicted, can it be said, that theCourt which is empowered to impose the said punishment cannot specify theperiod upto which the said sentence of life should remain befitting thenature of the crime committed, while at the same time apply the rarest ofrare principle, the Court’s conscience does not persuade it to confirm thedeath penalty. In such context when we consider the views expressed inShraddananda (supra) in paragraphs 91 and 92, the same is fully justifiedand needs to be upheld. By stating so, we do not find any violation of thestatutory provisions prescribing the extent of punishment provided in thePenal Code. It cannot also be said that by stating so, the Court has carvedout a new punishment. What all it seeks to declare by stating so was thatwithin the prescribed limit of the punishment of life imprisonment, havingregard to the nature of offence committed by imposing the life imprisonmentfor a specified period would be proportionate to the crime as well as theinterest of the victim, whose interest is also to be taken care of by theCourt, when considering the nature of punishment to be imposed. We alsonote that when the report of Justice Malimath Committee was submitted in2003, the learned Judge and the members did not have the benefit of the lawlaid down in Swamy Shraddananda (supra). Insofar as Justice Verma Committeereport of 2013 was concerned, the amendments introduced after the saidreport in Sections 370(6), 376A, 376D and 376E, such prescription statingthat life imprisonment means the entirety of the convict’s life does not inany way conflict with the well thought out principles stated in SwamyShraddananda (supra). In fact, Justice Verma Committee report onlyreiterated the proposition that a life imprisonment means the whole of theremaining period of the convict’s natural life by referring to Mohd. Munna(supra), Rameshbhai Chandubhai Rathod v. State of Gujarat – 2011 (2) SCC764 and State of Uttar Pradesh v. Sanjay Kumar - 2012 (8) SCC 537 andnothing more. Further, the said Amendment can only be construed toestablish that there should not be any reduction in the life sentence andit should remain till the end of the convict’s life span. As far as thereference to prescription of different type of punishments in certain othercountries need not dissuade us to declare the legal position based on thepunishment prescribed in the Penal Code and the enormity of the crimes thatare being committed in this country. For the very same reasons, we are notable to subscribe to the submissions of Mr. Dwivedi and Shri Andhyarujinathat by awarding such punishment of specified period of life imprisonment,the Court would be entering the domain of the Executive or violative of theprinciple of separation of powers. By so specifying, it must be held that,the Courts even while ordering the punishment prescribed in the Penal Codeonly seek to ensure that such imposition of punishment is commensurate tothe nature of crime committed and in that process no injustice is causedeither to the victim or the accused who having committed the crime is boundto undergo the required punishment. It must be noted that the highestexecutive power prescribed under the Constitution in Articles 72 and 161remains untouched for grant of pardon, suspend, remit, reprieve or commuteany sentence awarded. As far as the apprehension that by declaring such asentencing process, in regard to the offences falling under Section 302 andother offences for which capital punishment or in the alternate lifeimprisonment is prescribed, such powers would also be available to thetrial Court, namely, the Sessions Court is concerned, the saidapprehension can be sufficiently safeguarded by making a detailed referenceto the provisions contained in Chapter XXVIII of Code of Criminal Procedurewhich we shall make in the subsequent paragraphs of this judgment. As faras the other apprehension that by prohibiting the consideration of anyremission the executive power under Sections 432 and 433 are concerned, itwill have to be held that such prohibition will lose its force the moment,the specified period is undergone and the Appropriate Government’s power toconsider grant of remission will automatically get revived. Here again, itcan be stated at the risk of repetition that the higher executive powerprovided under the Constitution will always remain and can be exercisedwithout any restriction.As far as the argument based on ray of hope is concerned, it must be statedthat however much forceful, the contention may be, as was argued by Mr.Dwivedi, the learned Senior Counsel appearing for the State, it must bestated that such ray of hope was much more for the victims who were done todeath and whose dependents were to suffer the aftermath with no solaceleft. Therefore, when the dreams of such victims in whatever manner andextent it was planned, with reference to oneself, his or her dependents andeveryone surrounding him was demolished in an unmindful and in some casesin a diabolic manner in total violation of the Rule of Law which isprevailing in an organized society, they cannot be heard to say only theirrays of hope should prevail and kept intact. For instance, in the caserelating to the murder of the former Prime Minister, in whom the people ofthis country reposed great faith and confidence when he was entrusted withsuch great responsible office in the fond hope that he will do his best todevelop this country in all trusts, all the hope of the entire people ofthis country was shattered by a planned murder which has been mentioned indetail in the judgment of this Court which we have extracted in paragraphNo.147. Therefore, we find no scope to apply the concept of ray of hope tocome for the rescue of such hardened, heartless offenders, which ifconsidered in their favour will only result in misplaced sympathy and againwill be not in the interest of the society. Therefore, we reject the saidargument outright.Having thus noted the various submissions on this question, we havehighlighted the various prescriptions in the cited judgments to demonstrateas to how the highest Court of this land is conscious of the onerousresponsibility reposed on this institution by the Constitution makers inorder to ensure that even if there is a Penal provision for the impositionof capital punishment of death provided for in the statute, before decidingto impose the said sentence, there would be no scope for anyone to evenremotely suggest that there was any dearth or deficiency or lack ofconsideration on any aspect in carrying out the said onerous duty andresponsibility. When the highest Court of this land has thus laid down thelaw and the principles to be applied in the matter of such graverpunishments and such principles are dutifully followed by the High Courts,when the cases are placed before it by virtue of the provisions containedin Chapter XXVIII of Code of Criminal Procedure, it must be held that itwill also be permissible for this Court to go one step further andstipulate as to what extent such great precautionary principle can befurther emphasized.Before doing so, we also wish to note each one of the 12 crimes for which,the penalty of death and life is prescribed. Under Section 120B, whenprescribing the penalty for criminal conspiracy in respect of offence forwhich death penalty or life imprisonment is provided for in the Penal Code,every one of the accused who was a party to such criminal conspiracy in thecommission of the offence is to be treated as having abetted the crime andthereby liable to be punished and imposed with the same punishment as wasto be imposed on the actual offender. Under Section 121 the provision forcapital punishment is for the offence of waging or attempting to wage a waror abetting the waging of war against the Government of India. In otherwords, in the event of such offence found proved, such a convict can beheld to have indulged in a crime against the whole of the NATION meaningthereby against every other Indian citizen and the whole territory of thiscountry. Under Section 132, the punishment of death is provided for anoffender who abets the committing of MUTINY by an officer, soldier, sailoror airman in the Army, Navy or Air Force of the Government of India and inthe event of such MUTINY been committed as a sequel to such abetment.MUTINY in its ordinary dictionary meaning is an open revolt againstConstitutional authority, especially by soldiers or sailors against theirofficers. It can be, therefore, clearly visualized that in the event ofsuch MUTINY taking place by the Army personnel what would be plight of thiscountry and the safety and interest of more than 120 million people livingin this country. Under the later part of Section 194 whoever tenders orfabricates false evidence clearly intending thereby that such act wouldcause any innocent person be convicted of capital punishment and any suchinnocent person is convicted of and executed of such capital punishment,the person who tendered such fake and fabricated evidence be punished withpunishment of death. Under the Second Part of Section 195A if any personthreatens any other person to give false evidence and as a consequence ofsuch Act any other person is though innocent, but convicted and sentencedto death in consequence of such false evidence, the person at whose threatthe false evidence came to be tendered is held to be liable to be meted outwith the same punishment of death.Under Section 302, whoever commits murder of another person is liable to bepunished with death or life imprisonment. Under Section 305, whoever abetsthe commission of suicide of a person under 18 years of age i.e. a minor orjuvenile, any insane person, any idiot or any person in a state ofintoxication is liable to be punished with death or life imprisonment. Itis relevant to note that the categories of persons whose suicide is abettedby the offender would be persons who in the description of law aresupposedly unaware of committing such act which they actually perform butfor the abetment of the offender.Under the Second Part of Section 307, if attempt to murder is found provedagainst an offender who has already been convicted and sentenced to undergolife imprisonment, then he is also liable to be inflicted with the sentenceof death. Under Section 376A whoever committed the offence of rape and inthe course of commission of such offence, also responsible for committingthe death of the victim or such injury caused by the offence is such thatthe victim is in a persistent vegetative state, then the minimum punishmentprovided for is 20 years or life imprisonment or death.Under Section 376E whoever who was once convicted for the offence underSections 376, 376A or 376D is subsequently convicted of an offence underany of the said Sections would be punishable for life imprisonment meaningthereby imprisonment for the remainder of his life span or with death.Under Section 376D for the offence of gang rape, the punishment providedfor is imprisonment for a minimum period of 20 years and can extend uptolife imprisonment meaning thereby the remainder of that person’s life.Under Section 364A kidnapping for ransom, etc. in order to compel theGovernment or any foreign State or international, intergovernmentalorganization or another person to do or abstain from doing any act to pay aransom shall be punishable with death or life imprisonment.Under Section 396, if any one of five or more persons conjointly committeddecoity, everyone of those persons are liable to be punished with death orlife imprisonment.Thus, each one of the offences above noted, for which the penalty of deathor life imprisonment or specified minimum period of imprisonment isprovided for, are of such magnitude for which the imposition of anyone ofthe said punishment provided for cannot be held to be excessive or notwarranted. In each individual case, the manner of commission or the modusoperandi adopted or the situations in which the act was committed or thesituation in which the victim was situated or the status of the person whosuffered the onslaught or the consequences that ensued by virtue of thecommission of the offence committed and so on and so forth may vary in verymany degrees. It was for this reason, the law makers, while prescribingdifferent punishments for different crimes, thought it fit to prescribeextreme punishments for such crimes of grotesque (monstrous) nature.While that be so it cannot also be lost sight of that it will be next toimpossible for even the law makers to think of or prescribe in exactitudeall kinds of such criminal conduct to fit into any appropriate pigeon holefor structured punishments to run in between the minimum and maximum periodof imprisonment. Therefore, the law makers thought it fit to prescribe theminimum and the maximum sentence to be imposed for such diabolic nature ofcrimes and leave it for the adjudication authorities, namely, theInstitution of Judiciary who is fully and appropriately equipped with thenecessary knowledge of law, experience, talent and infrastructure to studythe detailed parts of each such case based on the legally acceptablematerial evidence, apply the legal principles and the law on the subject,apart from the guidance it gets from the jurists and judicialpronouncements revealed earlier, to determine from the nature of such graveoffences found proved and depending upon the facts noted what kind ofpunishment within the prescribed limits under the relevant provision wouldappropriately fit in. In other words, while the maximum extent ofpunishment of either death or life imprisonment is provided for under therelevant provisions noted above, it will be for the Courts to decide if inits conclusion, the imposition of death may not be warranted, what shouldbe the number of years of imprisonment that would be judiciously andjudicially more appropriate to keep the person under incarceration, bytaking into account, apart from the crime itself, from the angle of thecommission of such crime or crimes, the interest of the society at large orall other relevant factors which cannot be put in any straitjacketformulae.The said process of determination must be held to be available with theCourts by virtue of the extent of punishments provided for such specifiednature of crimes and such power is to be derived from those penalprovisions themselves. We must also state, by that approach, we do not findany violation of law or conflict with any other provision of Penal Code,but the same would be in compliance of those relevant provisions themselveswhich provide for imposition of such punishments.That apart, as has been noted by us earlier, while the description of theoffences and the prescription of punishments are provided for in the PenalCode which can be imposed only through the Courts of law, under ChapterXXVIII of Code of Criminal Procedure, at least in regard to theconfirmation of the capital punishment of death penalty, the wholeprocedure has been mandatorily prescribed to ensure that such punishmentgets the consideration by a Division Bench consisting of two Hon’ble Judgesof the High Court for its approval. As noted earlier, the said ChapterXXVIII can be said to be a separate Code by itself providing for a detailedconsideration to be made by the Division Bench of the High Court, which cando and undo with the whole trial held or even order for retrial on the sameset of charges or of different charges and also impose appropriatepunishment befitting the nature of offence found proved.Such prescription contained in the Code of Criminal Procedure, thoughprocedural, the substantive part rests in the Penal Code for the ultimateConfirmation or modification or alteration or amendment or amendment of thepunishment. Therefore, what is apparent is that the imposition of deathpenalty or life imprisonment is substantively provided for in the PenalCode, procedural part of it is prescribed in the Code of Criminal Procedureand significantly one does not conflict with the other. Having regard tosuch a dichotomy being set out in the Penal Code and the Code of CriminalProcedure, which in many respects to be operated upon in the adjudicationof a criminal case, the result of such thoroughly defined distinctivefeatures have to be clearly understood while operating the definiteprovisions, in particular, the provisions in the Penal Code providing forcapital punishment and in the alternate the life imprisonment.Once we steer clear of such distinctive features in the two enactments, onesubstantive and the other procedural, one will have no hurdle or difficultyin working out the different provisions in the two different enactmentswithout doing any violence to one or the other. Having thus noted theabove aspects on the punishment prescription in the Penal Code and theprocedural prescription in the Code of Criminal Procedure, we canauthoritatively state that the power derived by the Courts of law in thevarious specified provisions providing for imposition of capitalpunishments in the Penal Code such power can be appropriately exercised bythe adjudicating Courts in the matter of ultimate imposition of punishmentsin such a way to ensure that the other procedural provisions contained inthe Code of Criminal Procedure relating to grant of remission, commutation,suspension etc. on the prescribed authority, not speaking of similar powersunder Articles 72 and 162 of the Constitution which are untouchable, cannotbe held to be or can in any manner overlap the power already exercised bythe Courts of justice.In fact, while saying so we must also point out that such exercise of powerin the imposition of death penalty or life imprisonment by the SessionsJudge will get the scrutiny by the Division Bench of the High Courtmandatorily when the penalty is death and invariably even in respect oflife imprisonment gets scrutinized by the Division Bench by virtue of theappeal remedy provided in the Code of Criminal Procedure. Therefore, ourconclusion as stated above can be reinforced by stating that the punishmentpart of such specified offences are always examined at least once after theSessions Court’s verdict by the High Court and that too by a Division Benchconsisting of two Hon’ble Judges.That apart, in most of such cases where death penalty or life imprisonmentis the punishment imposed by the trial Court and confirmed by the DivisionBench of the High Court, the concerned convict will get an opportunity toget such verdict tested by filing further appeal by way of Special Leave tothis Court. By way of abundant caution and as per the prescribed law ofthe Code and the criminal jurisprudence, we can assert that after theinitial finding of guilt of such specified grave offences and theimposition of penalty either death or life imprisonment when comes underthe scrutiny of the Division Bench of the High Court, it is only the HighCourt which derives the power under the Penal Code, which prescribes thecapital and alternate punishment, to alter the said punishment with oneeither for the entirety of the convict’s life or for any specific period ofmore than 14 years, say 20, 30 or so on depending upon the gravity of thecrime committed and the exercise of judicial conscience befitting suchoffence found proved to have been committed.We, therefore, reiterate that, the power derived from the Penal Code forany modified punishment within the punishment provided for in the PenalCode for such specified offences can only be exercised by the High Courtand in the event of further appeal only by the Supreme Court and not by anyother Court in this country. To put it differently, the power to impose amodified punishment providing for any specific term of incarceration ortill the end of the convict’s life as an alternate to death penalty, can beexercised only by the High Court and the Supreme Court and not by any otherinferior Court.Viewed in that respect, we state that the ratio laid down in SwamyShraddananda (supra) that a special category of sentence; instead of Death;for a term exceeding 14 years and put that category beyond application ofremission is well founded and we answer the said question in theaffirmative. We are, therefore, not in agreement with the opinion expressedby this Court in Sangeet and Anr. v. State of Haryana – 2013 (2) SCC 452that the deprival of remission power of the Appropriate Government byawarding sentences of 20 or 25 years or without any remission as notpermissible is not in consonance with the law and we specifically overrulethe same.With that we come to the next important question, namely:“Whether the Appropriate Government is permitted to grant remission underSection 432/433 of Code of Criminal Procedure after the pardon power isexercised under Article 72 by the President and under Article 161 by theGovernor of the State or by the Supreme Court of its Constitutional Powerunder Article 32.” For the above discussion the relevant provisions of Code of CriminalProcedure, 1973 are extracted as under:“Section 432.- Power to suspend or remit sentences – (1) when any personhas been sentenced to punishment for an offence, the appropriate Governmentmay, at any time, without conditions or upon any conditions which theperson sentenced accepts, suspend the execution of his sentence or remitthe whole or any part of the punishment to which he has been sentenced.(2) whenever an application is made to the appropriate Government for thesuspension or remission of a sentence, the appropriate Government mayrequire the presiding Judge of the Court before or by which the convictionwas had or confirmed, to state his opinion as to whether the applicationshould be granted or refused, together with his reasons for such opinionand also to forward with the statement of such opinion a certified copy ofthe record of the trial or of such record thereof as exists.(3) If any condition on which a sentence has been suspended or remitted is,in the opinion of the appropriate Government, not fulfilled, theappropriate Government may cancel the suspension or remission, andthereupon the person in whose favour the sentence has been suspended orremitted may, if at large, be arrested by any police officer, withoutwarrant and remanded to undergo the unexpired portion of the sentence.(4) The condition on which a sentence is suspended or remitted under thissection may be one to be fulfilled by the person in whose favour thesentence is suspended or remitted, or one independent of his will.(5) The appropriate Government may, by general rules or special orders,give directions as to the suspension of sentences and the conditions onwhich petitions should be presented and dealt with: Provided that in the case of any sentence (other than a sentence offine) passed on a male person above the age of eighteen years, no suchpetition by the person sentenced or by any other person on his behalf shallbe entertained, unless the person sentenced is in jail, and,-Where such petition is made by the person sentenced, it is presentedthrough the officer in charge of the jail; orWhere such petition is made by any other person, it contains a declarationthat the person sentenced is in jail.(6) The provisions of the above sub-sections shall also apply to any orderpassed by a Criminal Court under any section of this Code or of any otherlaw which restricts the liberty of any person or imposes any liability uponhim or his property.(7) In this section and in Section 433, the expression “appropriateGovernment” means,-(a) in cases where the sentence is for an offence against, or the orderreferred to in sub-section (6) is passed under, any law relating to amatter to which the executive power of the Union extends, the CentralGovernment:(b) in other cases, the Government of the State within which the offenderis sentenced or the said order is passed.Section 433.-Power to commute sentence- The appropriate Government may,without the consent of the person sentenced commute- A sentence of death, for any other punishment provided by the Indian PenalCode A sentence of imprisonment for life, for imprisonment for a term notexceeding fourteen years or for fine;A sentence of rigorous imprisonment, for simple imprisonment for any termto which that person might have been sentenced, or for fine;A sentence of simple imprisonment, or fine.”Last part of the second question refers to the exercise of power by thisCourt under Article 32 of the Constitution pertaining to a case ofremission. To understand the background in which the said part of thequestion was framed, we can look into paragraphs 29 to 31 of the Order ofReference. On behalf of the Union of India, it was contended that once thepower of commutation/remission has been exercised in a particular case of aconvict by a Constitutional forum particularly this Court, then therecannot be a further exercise of the Executive Power for the purpose ofcommuting/remitting the sentence of the said convict in the same case byinvoking Sections 432 and 433 of Code of Criminal Procedure.While stoutly resisting the said submission made on behalf of the Union ofIndia, Mr. Dwivedi, learned Senior Counsel, who appeared for the State ofTamil Nadu contended that in the case on hand, this Court while commutingthe death sentence of some of the convicts did not exercise the ExecutivePower of the State, and that it only exercised its judicial power in thecontext of breach of Article 21 of the Constitution. It was furthercontended that if the stand of Union of India is accepted then in everycase where this Court thought it fit to commute sentence for breach ofArticle 21 of the Constitution, that would foreclose even the right of aconvict to seek for further commutation or remission before the AppropriateGovernment irrespective of any precarious situation of the convict, i.e.,even if the physical condition of the convict may be such that he may bevegetable by virtue of his old age or terminal illness. It was alsopointed out that in V. Sriharan alias Murugan v. Union of India & Ors. -(2014) 4 SCC 242 dated 18.02.2014, this Court while commuting the sentenceof death into one of life also specifically observed that such commutationwas independent of the power of remission under the Constitution, as wellas, the Statute. In this context, when we refer the power ofcommutation/remission as provided under Code of Criminal Procedure, namely,Sections 432, 433, 433A, 434 and 435, it is quite apparent that theexercise of power under Article 32 of the Constitution by this Court isindependent of the Executive Power of the State under the Statue. Asrightly pointed out by Mr. Dwivedi, learned Senior Counsel in hissubmissions made earlier, such exercise of power was in the context ofbreach of Article 21 of the Constitution. In the present case, it was soexercised to commute the sentence of death into one of life imprisonment.It may also arise while considering wrongful exercise or perverted exerciseof power of remission by the Statutory or Constitutional authority.Certainly there would have been no scope for this Court to consider a caseof claim for remission to be ordered under Article 32 of the Constitution.In other words, it has been consistently held by this Court that when itcomes to the question of reviewing order of remission passed which ispatently illegal or fraught with stark illegality on Constitutionalviolation or rejection of a claim for remission, without any justificationor colourful exercise of power, in either case by the Executive Authorityof the State, there may be scope for reviewing such orders passed byadducing adequate reasons. Barring such exceptional circumstances, thisCourt has noted in numerous occasions, the power of remission always vestswith the State Executive and this Court at best can only give a directionto consider any claim for remission and cannot grant any remission andprovide for premature release. It was time and again reiterated that thepower of commutation exclusively rest with the Appropriate Government. Toquote a few, reference can be had to the decisions reported as State ofPunjab v. Kesar Singh - (1996) 5 SCC 495, Delhi Administration (now NCT ofDelhi) v. Manohar Lal - (2002) 7 SCC 222 which were followed in State(Government of NCT of Delhi) v. Prem Raj - (2003) 7 SCC 121. Paragraph 13of the last of the decision can be quoted for its lucid expression on thisissue which reads as under:“13. An identical question regarding exercise of power in terms of Section433 of the Code was considered in Delhi Admn. (now NCT of Delhi) v. ManoharLal. The Bench speaking through one of us (Doraiswamy Raju, J.) was of theview that exercise of power under Section 433 was an executive discretion.The High Court in exercise of its revisional jurisdiction had no powerconferred on it to commute the sentence imposed where a minimum sentencewas provided for the offence. In State of Punjab v. Kesar Singh this Courtobserved as follows [though it was in the context of Section 433(b)]: (SCCpp. 495-96, para 3)“The mandate of Section 433 Code of Criminal Procedure enables theGovernment in an appropriate case to commute the sentence of a convict andto prematurely order his release before expiry of the sentence as imposedby the courts……… That apart, even if the High Court could give such adirection, it could only direct consideration of the case of prematurerelease by the Government and could not have ordered the premature releaseof the respondent itself. The right to exercise the power under Section 433CrPC vests in the Government and has to be exercised by the Government inaccordance with the rules and established principles. The impugned order ofthe High Court cannot, therefore, be sustained and is hereby set aside.” (Underlining is ours)The first part of the said question pertains to the power of theAppropriate Government to grant remission after the parallel power isexercised under Articles 72 and 161 of the Constitution by the Presidentand the Governor of the State respectively. In this context, a referenceto Articles 72 and 161 of the Constitution on the one hand and Sections 432and 433 of Code of Criminal Procedure on the other needs to be noted. Whenwe refer to Article 72, necessarily a reference will have to be made toArticles 53 and 74 as well. Under Article 53 of the Constitution theExecutive Power of the Union vests in the President and such power shouldbe exercised by him either directly or through officers subordinate to himin accordance with the Constitution. Under Article 74, the exercise of thefunctions of the President should always be based on the aid and advise ofthe Council of Ministers headed by the Prime Minister. Under the proviso tothe said Article, the President can at best seek for reconsideration of anysuch advice and should act based on such reconsidered advice. Article74(2) in fact, has insulated any such advice being enquired into by anyCourt. Identical provisions are contained in Articles 154, 161 and 163 ofthe Constitution relating to the Governor of the State. Reading the aboveprovisions, it is clear that the president of the Union and the Governor ofthe State while functioning as the Executive Head of the respective bodies,only have to act based on the advice of the Council of Ministers of theUnion or the State. While so, when we look into the statutory prescriptioncontained in Sections 432 and 433 of the Code of Criminal Procedure thoughthe exercise of the power under both the provisions vests with theAppropriate Government either State or the Centre, it can only be exercisedby the Executive Authorities headed by the President or the Governor as thecase may be. In the first blush though it may appear that exercise of suchpower under Sections 432 and 433 is nothing but the one exercisable by thesame authority as the Executive Head, it must be noted that the realposition is different. For instance, when we refer to Section 432, thepower is restricted to either suspend the execution of sentence or remitthe whole or any part of the punishment. Further under sub-section (2) ofSection 432, it is stipulated that exercise of power of suspension orremission may require the opinion of the presiding Judge of the Courtbefore or by which the conviction was held or confirmed. There is alsoprovision for imposing conditions while deciding to suspend or remit anysentence or punishment. There are other stipulations contained in Section432. Likewise, when we refer to Section 433 it is provided therein thatthe Appropriate Government may without the consent of the persons sentencedcommute any of the sentence to any other sentence which ranges from Deathsentence to fine. One significant feature in the Constitutional power whichis apparent is that the President is empowered under Article 72 of theConstitution to grant pardons, reprieves, respites or remission, suspend orcommute the sentence. Similar such power is also vested with the Governorof the State. Whereas under Sections 432 and 433 of the Code of CriminalProcedure the power is restricted to suspension, remission and commutation. It can also be noted that there is no specific provision prohibiting theexecution of the power under Sections 432 and 433 of Code of CriminalProcedure when once similar such power was exercised by the ConstitutionalAuthorities under Articles 72 and 161 of the Constitution. There is alsono such implied prohibition to that effect.In this context, learned Solicitor General submitted that while the powerunder Articles 72 and 161 of the Constitution can be exercised more thanonce, the same is not the position with Sections 432 and 433 of Code ofCriminal Procedure. The learned Solicitor General contended that since theexercise of power under Articles 72 and 161 is with the aid of the Councilof Ministers, it must be held that Sections 432 and 433 of Code of CriminalProcedure are only enabling provisions for exercise of power under Articles72 and 161 of the Constitution. In support of the said submission, thelearned Solicitor General, sought to rely upon the passage in Maru Ram(supra) to the effect that: “since Sections 432 and 433(a) are statutory expression and modus operandiof the Constitutional power ……..”.Though the submission looks attractive, we are not convinced. We find thatthe said set of expression cannot be strictly stated to be the conclusionof the Court. In fact, if we read the entire sentence, we find that it waspart of the submission made which the Court declined. On the other hand,in the ultimate analysis, the Majority view was summarized wherein it washeld at page 1248 as under:“4. We hold that Sections 432 and 433 are not a manifestation of Articles72 and 161 of the Constitution but a separate, though similar, power, andSection 433A, by nullifying wholly or partially these prior provisions doesnot violate or detract from the full operation of the Constitutional powerto pardon, commute and the like.”Therefore, it must be held that there is every scope and ambit for theAppropriate Government to consider and grant remission under Sections 432and 433 of the Code of Criminal Procedure even if such consideration wasearlier made and exercised under Article 72 by the President and underArticle 161 by the Governor. As far as the implication of Article 32 ofthe Constitution by this Court is concerned, we have already held that thepower under Sections 432 and 433 is to be exercised by the AppropriateGovernment statutorily, it is not for this Court to exercise the said powerand it is always left to be decided by the Appropriate Government, even ifsomeone approaches this Court under Article 32 of the Constitution. Weanswer the said question on the above terms.The next questions for consideration are:“Whether Section 432(7) of the Code clearly gives primacy to the ExecutivePower of the Union and excludes the Executive Power of the State where thepower of the Union is coextensive?Whether the Union or the State has primacy over the subject-matter enlistedin List III of the Seventh Schedule to the Constitution of India forexercise of power of remission?Whether there can be two Appropriate Governments in a given case underSection 432(7) of the Code?”According to the respondents, it is the State Government which is theAppropriate Government in a case of this nature, unless it is specificallytaken over by way of a Statute from the State Government. Reference wasmade to proviso to Article 162 of the Constitution as well as Section432(7) of Code of Criminal Procedure where the expression used is “subjectto and limited by” which has got greater significance. It was alsocontended on behalf of the respondents that Penal Code is a compilations ofoffences, in different situations for which different consequence willfollow. By way of an analysis it was pointed out that Penal Code is underthe concurrent list and when the conviction is one under Section 302simpliciter, then, the jurisdiction for consideration of remission would bewith the State Government and that if the said Section also attracted theprovisions of TADA, then the Centre would get exclusive jurisdiction. Bymaking reference to Section 55A(a) of the Penal Code and Section 434 ofCode of Criminal Procedure it was contended that when the conviction andsentence is under Section 302 I.P.C., without the aid of TADA or any otherCentral Act, State Government gets jurisdiction which will be theAppropriate Government. In this context, our attention was drawn to thefact that in the Rajiv Gandhi murder case, respondents Santhan, Murugan,Nalini and Arivu @ Perarivalan were awarded death sentence, while 3 otheraccused, namely, Ravichandran, Robert Payas and Jayakumar were given lifeimprisonment and that Nalini’s death sentence was commuted by the Governorof the State in the year 2000, while the claim of 3 others was rejected.Later, by the judgment dated 18.02.2014, the death sentence of three otherswas also commuted to life by this Court. In support of the submissionreliance was placed upon the decisions of this Court in Ratan Singh(supra), State of Madhya Pradesh v. Ajit Singh and others - (1976) 3 SCC616, Hanumant Dass v. Vinay Kumar and ors. - (1982) 2 SCC 177 and Govt. ofA.P. and others v. M.T. Khan - (2004) 1 SCC 616.Reference was also made to the Constituent Assembly debates on Article 59which corresponds to Article 72 in the present form and Article 60 whichcorrespondents to Article 73(1)(a) of the present form. In the course ofthe debates, an amendment was sought to be introduced to Article 59(3) andin this context, the member who moved the amendment stated thus:“Sir, in my opinion, the President only should have power to suspend, remitor commute a sentence of death. He is the supreme Head of the State. Itfollows therefore that he should have the supreme powers also. I am ofopinion that rulers of States or Provincial Government should not be vestedwith this supreme power………”Dr. Ambedkar while making his comment on the amendment proposed statedthus:“Yes: Sir: It might be desirable that I explain in a few words in itsgeneral outline the scheme embodied in article 59. It is this: the power ofcommutation of sentence for offences enacted by the Federal Law is vestedin the President of the Union. The power to commute sentences for offencesenacted by the State Legislatures is vested in the Governors of the State.In the case of sentences of death, whether it is inflicted under any lawpassed by Parliament or by the law of the States, the power is vested inboth, the President as well as the State concerned. This is the scheme.” (Underlining is ours)After the above discussions on the proposed amendments, when it was put tovote, the amendment was negatived.Similarly the amendment to the proviso to Article 60 was preferred by amember who in his address stated thus:“The object of my amendment is to preserve the Executive Power of theStates or provinces at least in so far as the subjects which are includedin the concurrent list. It has been pointed out during the generaldiscussions that the scheme of the Draft Constitution is to whittle downthe powers of the States considerably and, though the plan is said to be afederal one, in actual fact it is a unitary form of Government that issought to be imposed in the Country by the Draft Constitution……” (Emphasis added)After an elaborate discussion, when the opinion of Dr. Ambedkar was sought,he addressed the Assembly and stated thus:“The Hon’ble Dr. B.R. Ambedkar (Bombay:General): Mr. Vice- President, Sir,I am sorry that I cannot accept either of the two amendments which havebeen moved to this proviso, but I shall state to the House very briefly thereasons why I am not in a position to accept these amendments. Before I doso, I think it is desirable that the House should know what exactly is thedifference between the position as stated in the proviso and the twoamendments which are moved to that proviso. Taking the proviso as itstands, it lays down two propositions. The first proposition is thatgenerally the authority to executive laws which relate to what is calledthe concurrent field, whether the law is passed by the Central Legislatureor whether it is passed by the provincial or State Legislature, shallordinarily apply to the province or the State. That is the firstproposition which this proviso lays down. The second proposition which theproviso lays down is that if in any particular case Parliament thinks thatin passing the law which relates to the concurrent field the executionought to be retained by the Central Government, Parliament shall have thepower to do so. Therefore, the position is this; that in all cases,ordinarily, the executive authority so far as the concurrent list isconcerned will rest with the union, the provinces as well as the States.It is only in exceptional cases that the Centre may prescribe that theexecution of the concurrent law shall be with the Centre.” (Emphasis added)Thereafter further discussions were held and ultimately when the amendmentwas put to vote, the same was negatived.It was, therefore, contended that in the absence of a specific lawpertaining to the exercise of power under Sections 432 and 433, the Stateswill continue to exercise their power of remission and commutation and thatcannot be prevented. As against the above submissions, learned SolicitorGeneral contended that a reference to the relevant provision of the PenalCode and the Code of Criminal Procedure read along with the Constitutionalprovisions disclose that Entry I of List III of the Seventh Schedule makesa clear specification of the jurisdiction of the Centre and the State andany overlapping is taken care of in the respective entries themselves. Thelearned Solicitor General also brought to our notice the incorporation ofSection 432(7) in the Code of Criminal Procedure providing for acomprehensive definition of ‘Appropriate Government’ based on therecommendations of the Law Commission in its Forty First Report. By thesaid report, the law Commission indicated that the definition of‘Appropriate Government’ as made in Sections 54, 55 and 55A needs to beomitted in the Indian Penal Code as redundant while making a comprehensiveprovision in Section 402 (now the corresponding present Section 433).Paragraphs 29.10, 29.11 and 29.12 of the said report can be noted for thepurpose for which the amendment was suggested and its implications:“29.10. Power to commute sentences.- Sub-section (1) of section 402 enablesthe Appropriate Government to commute sentences without the consent of theperson sentenced. This general provision has, however, to be read withsections 54 and 55 of the Indian Penal Code which contain specialprovisions in regard to commutation of sentences of death and ofimprisonment for life. The definition of “Appropriate Government” containedin sub-section (3) of section 402 is substantially the same as thatcontained in section 55A of the Indian Penal Code. It would obviously bedesirable to remove this duplication and to state the law in one place. Inthe present definition of “Appropriate Government” in section 402(3), thereference to the State Government is somewhat ambiguous. It will be noticedthat clause (b) of section 55A of the Indian Penal Code specifies theparticulars State Government which is competent to order commutation as“the Government of the State within which the offender is sentenced”.29.11. Section 402 revised: sections 54, 55 and 55A of I.P.C. to beomitted.- We, therefore, propose that sections 54,55 and 55A may be omittedfrom the Indian Penal Code and their substance incorporated in section 402of the Criminal Procedure Code. This section may be revised as follows:-“402. Power to commute sentence.-(1) The Appropriate Government may,without the consent of the person sentenced,-commute a sentence of death, for any other punishment provided by theIndian Penal Code;commute a sentence of imprisonment for life, for imprisonment of eitherdescription for a term, not exceeding fourteen years or for fine;commute a sentence of rigorous imprisonment, for simple imprisonment forany term to which that person might have been sentenced or for fine; commute a sentence of simple imprisonment, for fine.(2) In this section and in section 401, the expression “AppropriateGovernment” means-(a) in cases where the sentence is for an offence against, or the orderreferred to in sub-section (4A) of section 401 is passed under, any lawrelating to a matter to which the Executive Power of the Union extends, theCentral Government; and(b) in other cases, the Government of the State within which the offenderis sentenced or the said order is passed.”29.12. The power to suspend or remit sentences under section 401 and thepower to commute sentences under section 402 are thus divided between theCentral Government and the State Government on the Constitutional linesindicated in Articles 72 and 161. If, for instance, a person is convictedat the same trial for an offence punishable under the Arms Act or theExplosives Act and for an offence punishable under the Indian Penal Codeand sentenced to different terms of imprisonment but running concurrently,both Governments will have to pass orders before the sentences areeffectively suspended, remitted or commuted. Cases may occur where theState Government’s order simply mentions the nature of the sentenceremitted or commuted and is treated as sufficient warrant by the prisonauthorities though strictly under the law, a corresponding order of theCentral Government is required in regard to the sentence for the offencefalling within the Union List. The legal provisions are, however, clear onthe point and we do not consider that any clarification is required.”The learned Solicitor General also relied upon the judgment of this Courtin G.V. Ramanaiah v. The Superintendent of Central Jail, Rajahmundry andothers - AIR 1974 SC 31 and contended that where the offence is dealt withby the prosecuting agency of the Central Government, by virtue of theproviso to Article 73 of the Constitution, the Executive Power of theCentral Government is saved and, therefore, in such cases, it is theCentral Government which is the Appropriate Government.Having noted the respective submissions of the parties, the sum andsubstance of the submission of the respondent State as well as otherrespondents is that a conspectus consideration of the definition of the“Appropriate Government” under the Penal Code read along with Section432(7) of Code of Criminal Procedure, where the conviction was under thepenal provision of IPC and was not under any Central Act, the wholeauthority for consideration of suspension of sentence or remission ofsentence or commutation rests solely with the State Government within whosejurisdiction, the conviction came to be imposed. It was, however, submittedthat if the conviction was also under any of the Central Act, then and thenalone the Central Government becomes the ‘Appropriate Government’ and nototherwise. It was in support of the said submission, reliance was placedupon the decisions of this Court in Ratan Singh (supra), Ajit Singh(supra), Hanumant Dass (supra) and M.T. Khan (supra). The ConstituentAssembly debates on the corresponding Articles viz., Articles 72 and 73were also highlighted to show the intention of the Constituent Assemblywhile inserting the above said Articles to show the primacy of the StateGovernment under certain circumstances and that of the Central Governmentunder certain other circumstances which the Members of the Assembly wantedto emphasis.The question posed for our consideration is whether there can be twoAppropriate Governments under Section 432(7) of the Code of CriminalProcedure and whether Union or the State has primacy for the exercise ofthe power under Section 432(7) over the subject matter enlisted in List IIIof the Seventh Schedule for grant of remission as a co-extensive power. Tofind an answer to the combined questions, we can make reference to Section55A of the Penal Code which defines “Appropriate Government” referred to inSections 54 and 55 of the Penal Code. Sections 54 and 55 of the Penal Codepertain to commutation of sentence of death and imprisonment for liferespectively by the Appropriate Government. In that context, in Section55A, the expressions “Appropriate Government” has been defined to mean incases where the sentence is a sentence of death or is for an offenceagainst any law relating to a matter to which the Executive Power of theUnion extends, the Central Government. The definition, therefore, makes itclear that insofar as it relates to commutation of death sentence, theAppropriate Government is the Central Government. That apart, if thesentence of death or life is for an offence against any law relating to amatter to which the Executive Power of the Union extends, then again, the‘Appropriate Government’ is the Central Government. We have dealt with inextenso while examining Section 73(1) (a) with particular reference to theproviso as to under what circumstance the Executive Power of the CentralGovernment will continue to remain as provided under Article 73(1)(a). Wecan make a reference to that part of our discussion, where we haveexplained the implication of the proviso to Article 73(1)(a) in order tonote the extent of the Executive Power of the Central Government under thesaid Article. Therefore, in those cases, where by virtue of any law passedby the Parliament or any of the provisions of the Constitution empoweringthe Central Government to act by specifically conferring ExecutiveAuthority, then in all those situations, the Executive Power of the CentralGovernment will remain even if the State Government is also empowered topass legislations under the Constitution. By virtue of the saidConstitutional provision contained in the proviso to Article 73(1) (a), ifthe Executive Power of the Central Government remains, applying Section 55A(a) of the Penal Code, it can be stated without any scope of controversythat the Central Government would be the Appropriate Government in thosecases, where the sentence is of death or is for an offence relating to amatter wherein the Executive Power of the Union gets extended. This is onetest to be applied for ascertaining as who will be the AppropriateGovernment for passing order of commutation of sentence of death as well aslife imprisonment in the context of Sections 54 and 55 of Penal Code.Keeping it aside for a while, when we refer to Section 55A (b), it isprovided therein that in cases where the sentence, whether of death or not,is for an offence against any law relating to a matter to which theExecutive Power of the State extends, the Government of the State withinwhich the offender is sentenced will be the Appropriate Government. Sub-clause (b) of Section 55A postulates different circumstances viz., thesentence whether of death or not is for an offence relating to a matter towhich the Executive Power of the State extends, then if the imposition ofsuch sentence was within the four corners of the State concerned, then theAppropriate Government would be the State Government. In fact in thiscontext, the submission made on behalf of the respondents needs to beappreciated that if there was a conviction for an offence under Section 302IPC simpliciter, even if the prosecuting agency was the Central Government,the State Government would be the Appropriate Government within whosejurisdiction the imposition of sentence came to be made either of death ornot. While analyzing Section 55A, vis-à-vis Sections 54 and 55 of thePenal Code, wherever the Executive Power of the Union extends, theAppropriate Government would be the Central Government and in all othercases, the Appropriate Government would be the concerned State within whosejurisdiction the sentence came to be imposed.With that analysis made with reference to Section 55 of the Penal Code,when we refer to Section 432(7) of Code of Criminal Procedure, here again,we find the definition “Appropriate Government” is made with particularreference to and in the context of Sections 432 and 433 of Code of CriminalProcedure. Under Section 432(1) to (6) the prescription is relating to thepower to suspend or remit sentences, the procedure to be followed, theconditions to be imposed and the consequences in the event of breach of anyconditions imposed. Similarly, Section 433 pertains to the power of theAppropriate Government to commute the sentence of death, imprisonment forlife, sentence of rigorous imprisonment and sentence of simple imprisonmentto some other lesser punishment up to imposition of fine. The power underSection 433 can be exercised only by the Appropriate Government. It is inthe above context of the prescription contained in Sections 432 (1) to (6)and 433(a) to (d), the definition of ‘Appropriate Government’ under Section432(7) has to be analysed. Section 432(7) defines the ‘AppropriateGovernment’ to mean; in cases where the sentence is for an offence againstor the order referred to in sub-section (6) of Section 432 is passed underany law relating to a matter to which the Executive Power of the Unionextends, it is the Central Government. Therefore, what is to be seen iswhether the sentence passed is for an offence against any law relating to amatter to which the Executive Power of the Union extends. Here again, ourelaborate discussion on Article 73(1)(a) and its proviso need to be readtogether. It is imperative and necessary to refer to the discussions onArticles 72, 73, 161 and 162 of the Constitution, inasmuch as how toascertain the Executive Power of the Centre and the State has beenbasically set out only in those Constitutional provisions. In other words,only by applying the said Constitutional provisions, the Executive Power ofthe Centre and the State can be precisely ascertained. To put itdifferently, Section 432(7) does not prescribe or explain as to how toascertain the Executive Power of the Centre and the State, which can beascertained only by analyzing the above said Articles 72, 73, 161 and 162of the Constitution. If the offence falls under any such law which theParliament is empowered to enact as such law has been enacted, on whichsubject law can also be enacted by any of the States, then the ExecutivePower of the Centre by virtue of such enactment passed by the Parliamentproviding for enforcement of such Executive Power, would result in theCentral Government becoming the Appropriate Government in respect of anysentence passed against such law. At the risk of repetition, we can referto Article 73(1)(a) with its proviso to understand the Constitutionalprescription vis-à-vis its application for the purpose of ascertaining theAppropriate Government under Section 432(7) of the Code. When we read theproviso to Article 73(1) (a) closely, we note that the emphasis is on the‘Executive Power’ which should have been expressly provided in theConstitution or in any law made by the Parliament in order to apply thesaving Clause under the proviso. Once the said prescription is clearlyunderstood, what is to be examined in a situation where any question arisesas to who is the ‘Appropriate Government’ in any particular case, then ifeither under the law in which the prosecution came to be launched isexclusively under a Central enactment, then the Centre would be the‘Appropriate Government’ even if the situs is in any particular State.Therefore, if the order passed by a Criminal Court covered by sub-section(6) of Section 432 was under any law relating to a matter where theExecutive Power of the Union extends by virtue of enactment of suchExecutive Power under a law made by the Parliament or expressly provided inthe Constitution, then, the Central Government would be the AppropriateGovernment. Therefore, what is to be noted is, whether the sentence passedunder a law relating to a matter to which the Executive Power of the Unionextends, as has been stipulated in the proviso to Article 73(1)(a). In thiscontext, it will be worthwhile to make reference to what Dr. Ambedkarexplained, when some of the Members of the Assembly moved certainamendments to enhance the powers of the State with particular reference toArticle 60 of the Draft Constitution which corresponds to Article 73 as wasultimately passed. In the words of Dr. Ambedkar himself it was said:“The second proposition which the proviso lays down is that if in anyparticular case Parliament thinks that in passing the law which relates tothe concurrent field the execution ought to be retained by the CentralGovernment, Parliament shall have the power to do so…..It is only inexceptional cases that the Centre may prescribe that the execution of theconcurrent law shall be with the Centre.If the said prescription is satisfied than it would be the CentralGovernment who will be the Appropriate Government.For the purpose of ascertaining which Government would be the AppropriateGovernment as defined under Section 432(7), what is to be seen is thesentence imposed by the criminal court under the Code of Criminal Procedureor any other law which restricts the liberty of any person or imposes anyliability upon him or his property. If such sentence imposed is under anyof the Sections of the Penal Code, for which the Executive Power of theCentral Government is specifically provided for under a Parliamentenactment or prescribed in the Constitution itself then the ‘AppropriateGovernment’ would be the Central Government. To understand this positionmore explicitly, we can make reference to Article 72(1)(a) of theConstitution which while specifying the power of the Executive head of thecountry, namely, the President it is specifically provided that the powerto grant pardons, etc. or grant of remissions etc. or commutation ofsentence of any person convicted of any offence in all cases where thepunishment or sentence is by a Court Martial, then it is clear to theeffect that under the Constitution itself the Executive Power isspecifically conferred on the Centre. While referring to variousConstitutional provisions, we have also noted such express Executive Powerconferred on the Centre in respect of matters with reference to which theState is also empowered to make laws. If under the provisions of the Codethe sentence is imposed, within the territorial jurisdiction of the Stateconcerned, then the ‘Appropriate Government’ would be the State Government. Therefore, to ascertain who will be Appropriate Government whether theCentre or the State, the first test should be under what provision of theCode of Criminal Procedure the criminal Court passed the order of sentence.If the order of sentence is passed under any other law which restricts theliberty of a person, then which is that law under which the sentence waspassed to be ascertained. If the order of sentence imposed any liabilityupon any person or his property, then again it is to be verified underwhich provision of the Code of Criminal Procedure or any other law underwhich it was passed will have to be ascertained. In the ascertainment ofthe above questions, if it transpires that the implication to the provisoto Article 73(1)(a) gets attracted, namely, specific conferment ofExecutive Power with the Centre, then the Central Government will get powerto act and consequently, the case will be covered by Section 432(7) (a) ofthe Code and as a sequel to it, Central Government will be the ‘AppropriateGovernment’ to pass orders under Sections 432 and 433 of the Code ofCriminal Procedure.In order to understand this proposition of law, we can make a reference tothe decision relied upon by the learned Solicitor General in G.V. Ramanaiah(supra). That was a case where the offence was dealt with and theconviction was imposed under Sections 489A to 489D of the Penal Code. Theconvicts were sentenced to rigorous imprisonment for a period of ten years. The conviction came to be made by the criminal Court of the State of A.P.The question that came up for consideration was as to who would be the‘Appropriate Government’ for grant of remission as was provided underSection 401 of the Code of Criminal Procedure which is the correspondingSection for 432 of Code of Criminal Procedure. In that context, this Courtnoted that the four sections, viz., Sections 489(A) to 489(D) were added tothe Penal Code under the caption “of currency notes and Bank notes” by theCurrency Notes Forgery Act, 1899. This Court noted that the bunch of thoseSections were the law by itself and that the same would be covered by theexpression “currency coinage and legal tender” which are expressly includedin Entry 36 of the Union List in the Seventh Schedule of the Constitution.Entry No.93 of the Union List in the same Schedule conferred on theParliament the power to legislate with regard to offences against laws withrespect to any of the matter in the Union List. It was, therefore, heldthat the offenses for which those persons were convicted were offencesrelating to a matter to which the Executive Power of the Union extended andthe Appropriate Government competent to remit the sentence would be theCentral Government and not the State Government. The said decision throwsadded light on this aspect.Therefore, whether under any of the provisions of the Criminal ProcedureCode or under any Special enactment enacted by the Central Government byvirtue of its enabling power to bring forth such enactment even though theState Government is also empowered to make any law on that subject, havingregard to the proviso to Article 73(1)(a), if the conviction is for any ofthe offences against such provision contained in the Code of CriminalProcedure or under such special enactments of the Centre if the ExecutivePower is specified in the enactment with the Central Government then theAppropriate Government would be the Central Government. Under Section432(7)(b) barring cases falling under 432(7)(a) in all other cases, wherethe offender is sentenced or the sentence order is passed within theterritorial jurisdiction of the concerned State, then alone the AppropriateGovernment would be the State.Therefore, keeping the above prescription in mind contained in Section432(7) and Section 55A of the IPC, it will have to be ascertained whetherin the facts and circumstances of a case, where the Criminal Court imposesthe sentence and if such sentence pertains to any Section of the Penal Codeor under any other law for which the Executive Power of the center extends,then in those cases the Central Government would be the ‘AppropriateGovernment’. Again in respect of cases, where the sentence is imposed bythe Criminal Court under any law which falls within the proviso to Article73(1)(a) of the Constitution and thereby the Executive Power of the Centreis conferred and gets attracted, then again, the Appropriate Governmentwould be the Centre Government. In all other cases, if the sentence orderis passed by the Court within the territorial jurisdiction of the concernedState, the concerned State Government would be the Appropriate Governmentfor exercising its power of remission, suspension as well as commutation asprovided under Sections 432 and 433 of the Code of Criminal Procedure.Keeping the above prescription in mind, every case will have to be testedto find out which is the Appropriate Government State or the Centre.However, when it comes to the question of primacy to the Executive Power ofthe Union to the exclusion of the Executive Power of the State, where thepower is co-extensive, in the first instance, it will have to be seen againwhether, the sentence ordered by the Criminal Court is found under any lawrelating to which the Executive Power of the Union extends. In thatrespect, in our considered view, the first test should be whether theoffence for which the sentence was imposed was under a law with respect towhich the Executive Power of the Union extends. For instance, if thesentence was imposed under TADA Act, as the said law pertains to the UnionGovernment, the Executive Power of the Union alone will apply to theexclusion of the State Executive Power, in which case, there will be noquestion of considering the application of the Executive Power of theState.But in cases which are governed by the proviso to Article 73(1) (a) of theConstitution, different situations may arise. For instance, as was dealtwith by this Court in G.V. Ramanaiah (supra), the offence was dealt with bythe criminal Court under Section 489(A) to 489(D) of the Penal Code. Whiledealing with the said case, this Court noted that though the offences fellunder the provisions of the Penal Code, which law was covered by Entry 1 ofList III of the Seventh Schedule, namely, the Concurrent List whichenabled both the Centre as well as the State Government to pass any law,having regard to the special feature in that case, wherein, currency notesand bank notes to which the offences related, were all matters fallingunder Entries 36 and 93 of the Union List of the Seventh Schedule, it washeld that the power of remission fell exclusively within the competence ofthe Union. Therefore, in such cases the Union Government will getexclusive jurisdiction to pass orders under Sections 432 and 433 Code ofCriminal Procedure.Secondly, in yet another situation where the law came to be enacted by theUnion in exercise of its powers under Articles 248, 249, 250, 251 and 252of the Constitution, though the legislative power of the States wouldremain, yet, the combined effect of these Articles read along with Article73(1) (a) of the Constitution will give primacy to the Union Government inthe event of any laws passed by the Centre prescribes the Executive Powerto vest with it to the exclusion of the Executive Power of the State thensuch power will remain with the Centre. In other words, here again, the co-extensive power of the State to enact any law would be present, but havingregard to the Constitutional prescription under Articles 248 to 252 of theConstitution by which if specific Executive Power is conferred then theUnion Government will get primacy to the exclusion of State. Thirdly, a situation may arise where the authority to bring about a lawmay be available both to the Union as well as the State, that the law madeby the Parliament may invest the Executive Power with the Centre while, theState may also enjoy similar such Executive Power by virtue of a law whichState Legislature was also competent to make. In these situations, theratio laid down by this Court in the decision in G.V. Ramanaiah (supra)will have to be applied and ascertain which of the two, namely, either theState or the Union would gain primacy to pass any order of remission, etc.In this context, it will be relevant to note the proviso to Article 162 ofthe Constitution, which reads as under:“Article 162.- Extent of executive power of State xxx xxx xxx Provided that in any matter with respect to which the Legislature ofa State and Parliament have power to make laws, the executive power of theState shall be subject to, and limited by, the executive power expresslyconferred by this Constitution or by any law made by Parliament upon theUnion or authorities thereof.” If the proviso applies to a case, the Executive Power of the Stateshould yield to the Executive Power of the Centre expressly conferred bythe Constitution or by any law made by Parliament upon the Union or itsauthorities.Therefore, the answer to the question should be to the effect that wherethe case falls under the first test noted herein, it will be governed bySection 432(7)(a) of the Code of Criminal Procedure in which event, thepower will be exclusive to the Union. In cases which fall under thesituation as was dealt with by this Court in G.V. Ramanaiah (supra), thereagain the power would exclusively remain with the Centre. Cases fallingunder second situation like the one covered by Articles 248 to 252 of theConstitution, wherein, the competence to legislate laws was with the State,and thereby if the Executive Power of the State will be available, havingregard to the mandate of these Articles which empowers the Union also tomake laws and thereby if the Executive Power of the Union also getsextended, though the power is co-extensive, it must be held that havingregard to the special features set out in the Constitution in thesesituations, the Union will get the primacy to the exclusion of the State.Therefore, we answer the question Nos.52.3, 52.4 and 52.5 to the aboveextent leaving it open for the parties concerned, namely, the Centre or theState to apply the test and find out who will be the ‘AppropriateGovernment’ for exercising the power under Sections 432 and 433 of theCriminal Procedure Code.Next, we take up the question: “Whether suo motu exercise of power of remission under Section 432(1) ispermissible in the scheme of the Section, if yes, whether the procedureprescribed in sub-section (2) of the same section is mandatory or not?”Section 432(1) and (2) reads as under:“432. Power to suspend or remit sentences.-(1) When any person has beensentenced to punishment for an offence, the Appropriate Government may, atany time, without conditions or upon any conditions which the personsentenced accepts, suspend the execution of his sentence or remit the wholeor any part of the punishment to which he has been sentenced.(2) Whenever an application is made to the Appropriate Government for thesuspension or remission of a sentence, the Appropriate Government mayrequire the presiding Judge of the Court before or by which the convictionwas had or confirmed, to state his opinion as to whether the applicationshould be granted or refused, together with his reasons for such opinionand also to forward with the statement of such opinion a certified copy ofthe record of the trial or of such record thereof as exists.”Sub-section (1) of Section 432 empowers the Appropriate Government eitherto suspend the execution of a sentence or remit the whole or any part ofthe punishment to which he has been sentenced. While passing such orders,it can impose any conditions or without any condition. In the event ofimposing any condition such condition must be acceptable to the personconvicted. Such order can be passed at any time.Sub-section (2) of Section 432 pertains to the opinion to be secured fromthe presiding Judge of the Court who convicted the person and imposed thesentence or the Court which ultimately confirmed such conviction. Wheneverany application is made to the Appropriate Government for suspension orremission of sentence, such opinion to be rendered must say whether theprayer made in the application should be granted or refused. It shouldalso contain reasons along with the opinion, certified copy of the recordof the trial or such other record which exists should also be forwarded.Before making an analysis on the question referred for our consideration,certain observations of the Constitution Bench of this Court in Maru Ram(supra) which was stated in the context of the power exercisable underArticles 72 and 161 of the Constitution needs to be noted. Suchobservations relating to the Constitutional power of the President andGovernor, of course with the aid and advice of the Council of Ministers, ison a higher plane and are stated to be ‘untouchable’ and ‘unapproachable’.It was also held that the Constitutional power, as compared to the powerexercisable under Sections 432 and 433 looks similar but not the same, inthe sense that the statutory power under Sections 432 and 433 is differentin source, substance and strength and it is not as that of theConstitutional power. Such statement of law was made by the ConstitutionBench to hold that notwithstanding Sections 433A which provides for minimumof 14 years incarnation for a lifer to get the benefit of remission, etc.,the President and the Governor can continue to exercise the power ofConstitution and release without the requirement of the minimum period ofimprisonment. But the significant aspect of the ruling is a word ofcaution even to such exercise of higher Constitutional power with highamount of circumspection and is always susceptible to be interfered with byjudicial forum in the event of any such exercise being demonstrated to befraught with arbitrariness or mala fide and should act in trust to ourGreat Master, the Rule of Law. In fact the Bench quoted certain exampleslike the Chief Minister of a State releasing everyone in the prison in hisState on his birthday or because a son was born to him and went to theextent of stating that it would be an outrage on the Constitution to letsuch madness to survive.We must state that such observations and legal principles stated in thecontext of Articles 72 and 161 of the Constitution will have greater forceand application when we examine the scope and ambit of the powerexercisable by the Appropriate Government under Section 432(1) and (2) ofCode of Criminal Procedure.Keeping the above principles in mind, when we analyze Section 432(1), itmust be held that the power to suspend or remit any sentence will have tobe considered and ordered with much more care and caution, in particularthe interest of the public at large. In this background, when we analyzeSection 432(1), we find that it only refers to the nature of poweravailable to the Appropriate Government as regards the suspension ofsentence or remission to be granted at any length. Extent of power is onething and the procedure to be followed for the exercise of the power isdifferent thing. There is no indication in Section 432(1) that such powercan be exercised based on any application. What is not prescribed in thestatute cannot be imagined or inferred. Therefore, when there is noreference to any application being made by the offender, cannot be taken tomean that such power can be exercised by the authority concerned on itsown. More so, when a detailed procedure to be followed is clearly set outin Section 432(2). It is not as if by exercising such power under Section432(1), the Appropriate Government will be involving itself in any greatwelfare measures to the public or the society at large. It can never beheld that such power being exercised suo motu any great development actwould be the result. After all such exercise of power of suspension orremission is only going to grant some relief to the offender who has beenfound to have committed either a heinous crime or at least a crimeaffecting the society at large. Therefore, when in the course of exerciseof larger Constitutional powers of similar kind under Articles 72 and 161of the Constitution it has been opined by this Court to be exercised withgreat care and caution, the one exercisable under a statute, namely, underSection 432(1) which is lesser in degree should necessarily be held to beexercisable in tune with the adjunct provision contained in the samesection. Viewed in that respect, we find that the procedure to be followedwhenever any application for remission is moved, the safeguard providedunder Section 432(2) should be the sine-quo-non for the ultimate power tobe exercised under Section 432 (1).By following the said procedure prescribed under Section 432(2), the actionof the Appropriate Government is bound to survive and stand the scrutiny ofall concerned including judicial forum. It must be remembered, barringminor offences, in cases involving heinous crimes like, murder, kidnapping,rape robbery, dacoity, etc., and such other offences of such magnitude, theverdict of the trial Court is invariably dealt with and considered by theHigh Court and in many cases by the Supreme Court. Thus, having regard tothe nature of opinion to be rendered by the presiding officer of theconcerned Court will throw much light on the nature of crime committed, therecord of the convict himself, his background and other relevant factorswhich will enable the Appropriate Government to take the right decision asto whether or not suspension or remission of sentence should be granted.It must also be borne in mind that while for the exercise of theConstitutional power under Articles 72 and 161, the Executive Head willhave the benefit of act and advice of the Council of Ministers, for theexercise of power under Section 432(1), the Appropriate Government will getthe valuable opinion of the judicial forum, which will definitely throwmuch light on the issue relating to grant of suspension or remission.Therefore, it can safely be held that the exercise of power under Section432(1) should always be based on an application of the person concerned asprovided under Section 432(2) and after duly following the procedureprescribed under Section 432(2). We, therefore, fully approve thedeclaration of law made by this Court in Sangeet (supra) in paragraph 61that the power of Appropriate Government under Section 432(1) Code ofCriminal Procedure cannot be suo motu for the simple reason that thisSection is only an enabling provision. We also hold that such a procedureto be followed under Section 432(2) is mandatory. The manner in which theopinion is to be rendered by the Presiding Officer can always be regulatedand settled by the concerned High Court and the Supreme Court bystipulating the required procedure to be followed as and when any suchapplication is forwarded by the Appropriate Government. We, therefore,answer the said question to the effect that the suo motu power of remissioncannot be exercised under Section 432(1), that it can only be initiatedbased on an application of the persons convicted as provided under Section432(2) and that ultimate order of suspension or remission should be guidedby the opinion to be rendered by the Presiding Officer of the concernedCourt.We are now left with the question namely:“Whether the term “‘Consultation’” stipulated in Section 435(1) of the Codeimplies “‘Concurrence’”?” It is relevant to extract Section 435(1) of Code of CriminalProcedure, which reads as under:“Section 435. State Government to act after consultation with CentralGovernment in certain cases.-(1) the powers conferred by sections 432 and433 upon the State Government to remit or commute a sentence, in any casewhere the sentence is for an offence. Which was investigated by the Delhi Special Police Establishmentconstituted under the Delhi Special Police Establishment Act, 1946, or byany other agency empowered to make investigation into an offence under anyCentral Act other than this Code, orWhich involved the misappropriation or destruction of, or damage to, anyproperty belonging to the Central Government, ofWhich was committed by a person in the service of the Central Government,while acting or purporting to act in the discharge of his official duty,shall not be exercised by the State Government except after consultationwith the Central Government.”Answer to this question depends wholly on the interpretation of Section 435of Code of Criminal Procedure. After referring to the said Section,learned Solicitor General referred to the convictions imposed on theaccused/respondents in the Late Rajiv Gandhi Murder case. LearnedSolicitor General pointed out that though 26 accused were convicted by theSpecial Court, this Court confirmed the conviction only as against the 7respondents in that Writ Petition and the rest of the accused were allacquitted, namely, 19 of them. He also pointed out that the conviction ofthe Special Court under TADA Act was set aside by this Court. While theconviction of the respondents under Sections 212 and 216 of I.P.C, Section14 of Foreigners Act, Section 25(1-B) of Arms Act, Section 5 of ExplosiveSubstances Act, Section 12 of the Passport Act and Section 6(1-A) of TheWireless Telegraph Act were all confirmed by this Court. That apartconviction under Section 120-B I.P.C. read with Section 302 I.P.C. againstall the seven respondents was also confirmed by this Court. In theultimate conclusion, this Court confirmed the death sentence against A-1Nalini, A-2 Santhan, A-3 Murugan and A-18 Arivu and the sentence of Deathagainst A-9 Robert Payas, A-10 Jayakumar and A-16 Ravichandran was alteredas imprisonment for life. Subsequently in the judgment in V. Sriharan(supra) even the death sentence against A-2 Santhan, A-3 Murugan and A-18Arivu was also commuted into imprisonment for life meaning thereby end ofone’s life, subject to remission granted by the Appropriate Governmentunder Section 432 of the Code of Criminal Procedure, 1973, which in turn,subject to the procedural checks mentioned in the said provision andfurther substantive checks in Section 433 A of the Code.As far as the remission provided under Section 432 is concerned, the samewill consist of the remission of the sentence of a prisoner by virtue ofgood behavior, etc., under the Jail Manual, Prisoners’ Act and Rules andother Regulations providing for earning of such remission and remission ofthe sentence itself by imposing conditions. Keeping the above factualmatrix in the Rajiv Gandhi Murder case, vis-à-vis the 7 respondents thereinas a sample situation, we proceed to analyze these questions arising underSection 435 Code of Criminal Procedure Learned Solicitor General in hissubmissions contended that since the punishments imposed on the respondentsunder the various Central Acts such as Foreigners Act, Passport Act, etc.,have all been completed by the respondents, the requirement of Section435(2) does not arise and, therefore, there will be no impediment for theState Government to exercise its power under Section 435(2) of the Code ofCriminal Procedure According to the learned Solicitor General, since theperiod of imprisonment under various Central Acts has already been sufferedby the respondents, the requirement of passing order of suspension,remission or commutation by the Central Government does not arise and it isfor the State Government to pass order of suspension, remission orcommutation under Section 435(2) Code of Criminal Procedure The learnedSolicitor General, however, contended that by virtue of the fact that wholeinvestigation right from the beginning was entrusted with the C.B.I. underthe Delhi Police Establishment Act and the ultimate conviction of therespondents under the provisions of Indian Penal Code came to be made bythe Special Court and commutation of the same with certain modifications asregards the sentence part alone by this Court, by virtue of the proviso toArticle 73(1)(a) of the Constitution, the Executive Authority of the Uniongets the power to pass order either under Article 72 of the Constitution orunder Sections 432 to 435 of Code of Criminal Procedure and to that extentthe scope and ambit of the power of the State Government gets restrictedand, therefore, in the event of the State Government, in its right as theAppropriate Government seeks to exercise its power under Section 435(1)Code of Criminal Procedure such exercise of power in the present contextcan be exercised only with the ‘Concurrence’ of the Central Government andthe expression ‘Consultation’ made in Section 435(1) should be held assuch. In support of his submissions the learned Solicitor General reliedupon Lalu Prasad Yadav & Anr. v. State of Bihar & Anr. - (2010) 5 SCC 1,Supreme Court Advocates on Record Association and ors. v. Union of India -(1993) 4 SCC 441, State of Gujarat and Anr. v. Justice R.A. Mehta (Retired)and ors. - (2013) 3 SCC 1 and N. Kannadasan v. Ajoy Khose and Ors. - (2009)7 SCC 1.As against the above submissions, Mr. Dwivedi, learned Senior Counsel forthe State of Tamil Nadu prefaced his submissions by contending that whileproposing to grant remission to the respondents, the State Government didnot undermine the nature of crime committed and the impact of the remissionthat may be caused on the society, as well as, the concern of the StateGovernment in this case. The learned Senior Counsel also submitted that theState Government is not going to act in haste and is very much alive to thefact that the person murdered was a former Prime Minister of this countryand the State cannot take things lightly while considering the remission tobe granted to the Respondents. The learned Senior Counsel, therefore,contended that in the process of ‘Consultation’, the views of the CentralGovernment will be duly considered before passing final orders on theproposed remission. According to learned Senior Counsel under Section435(1), the act of ‘Consultation’ prescribed is a rider to the exercise ofExecutive Power of the State to be exercised under Sections 432 and 433 inrespect of cases falling under Sections 435(1)(a) to (c). By referring toSections 435(2) the learned Senior Counsel contended that in the said sub-section cautiously the Parliament has used the expression ‘Concurrence’while in Section 435(1) the expression used is ‘Consultation’. It is,therefore, pointed out that the distinctive idea of ‘Consultation’ and‘Concurrence’ has been clearly disclosed. The learned Senior Counsel thenpointed out that while acting under Section 435(1), what is relevant is theSentence and not the Conviction, which can be erased only by grant ofpardon and grant of remission will have no implication on the conviction.By referring to Section 435(1)(b) & (c), the learned Senior Counsel pointedout that with reference to those offences where the investigation can becarried out entirely by the State Government and the offence would onlyrelate to the property of the Central Government and the services of personconcerned in the services of the Centre what is contemplated is only‘Consultation’. It was contended that when the ‘Consultation’ process isinvoked by the State Government, Union of India can suggest whateversafeguards to be made to ensure that even while granting remission,necessary safeguard is imposed. The learned Senior Counsel also submittedthat paramount consideration should be the interest of the Nation which isthe basic feature of the Constitution and, therefore, ‘Consultation’ meanseffective and meaningful ‘Consultation’ and that the State cannot act in anirresponsible manner keeping the Nation at peril. The learned SeniorCounsel contended that though the CBI conducted the investigation and allthe materials were gathered by the CBI, after the conviction, everymaterial is open and, therefore, it cannot be said that the StateGovernment had no material with it. The learned Senior Counsel also pointedout that the jail representation is with the State Government and it willbe open to the State to consider the recorded materials by the Court andinvoke its power under Sections 432 and 433 of Code of Criminal Procedure.The learned Senior Counsel further contended that in the process of‘Consultation’, the Union Government will be able to consider any othermaterial within its knowledge and make an effective report. If suchvaluable materials reflected in the ‘Consultation’ process are ignored bythe State, then the Court’s power of Review can always be invoked. Thelearned Senior Counsel relied upon the decisions reported in State of U.P.and another v. Johri Mal – (2004) 4 SCC 714, Justice Chandrashekaraiah(Retired) v. Janekere C. Krishna and others - (2013) 3 SCC 117 and S.R.Bommai and others v. Union of India and others - (1994) 3 SCC 1 in supportof his submissions.In order to appreciate the respective submissions, it will be necessary torefer to the relevant Government orders passed by the State of Tamil Naduand the consequential Notification issued by the Government of India afterthe gruesome murder of Late Rajiv Gandhi, the former Prime Minister ofIndia on 21.05.1991 at 10.19 p.m. at Sriperumbudur in Tamil Nadu. It willbe worthwhile to trace back the manner by which the accused targeted theirkilling as has been succinctly narrated in the judgment reported in Statethrough Superintendent of Police, CBI/SIT v. Nalini and others - (1999) 5SCC 253. Paragraphs 23 to 29 are relevant which read as under:“23. On 21-5-1991, Haribabu bought a garland made of sandalwood presumablyfor using it as a camouflage (for murdering Rajiv Gandhi). He also secureda camera. Nalini (A-1) wangled leave from her immediate boss (she wasworking in a company as PA to the Managing Director) under the pretext thatshe wanted to go to Kanchipuram for buying a saree. Instead she went to hermother’s place. Padma (A-21) is her mother. Murugan (A-3) was waiting forher and on his instruction Nalini rushed to her house at Villiwakkam(Madras). Sivarasan reached the house of Jayakumar (A-10) and he got armedhimself with a pistol and then he proceeded to the house of Vijayan (A-12).24. Sivarasan directed Suba and Dhanu to get themselves ready for the finalevent. Suba and Dhanu entered into an inner room. Dhanu was fitted with abomb on her person together with a battery and switch. The loosely stitchedsalwar-kameez which was purchased earlier was worn by Dhanu and it helpedher to conceal the bomb and the other accessories thereto. Sivarasan askedVijayan (A-12) to fetch an auto-rickshaw.25. The auto-rickshaw which Vijayan (A-12) brought was not taken close tohis house as Sivarasan had cautioned him in advance. He took Suba and Dhanuin the auto-rickshaw and dropped them at the house of Nalini (A-1). Subaexpressed gratitude of herself and her colleagues to Nalini (A-1) for thewholehearted participation made by her in the mission they had undertaken.She then told Nalini that Dhanu was going to create history by murderingRajiv Gandhi. The three women went with Sivarasan to a nearby temple whereDhanu offered her last prayers. They then went to “Parry’s Corner” (whichis a starting place of many bus services at Madras). Haribabu was waitingthere with the camera and garland.26. All the 5 proceeded to Sriperumbudur by bus. After reaching there theywaited for the arrival of Rajiv Gandhi. Sivarasan instructed Nalini (A-1)to provide necessary cover to Suba and Dhanu so that their identity as SriLankan girls would not be disclosed due to linguistic accent. Sivarasanfurther instructed her to be with Suba and to escort her after theassassination to the spot where Indira Gandhi’s statue is situate and towait there for 10 minutes for Sivarasan to reach.27. Nalini (A-1), Suba and Dhanu first sat in the enclosure earmarked forladies at the meeting place at Sriperumbudur. As the time of arrival ofRajiv Gandhi was nearing Sivarasan took Dhanu alone from that place. Hecollected the garland from Suba and escorted Dhanu to go near the rostrum.Dhanu could reach near the red carpet where a little girl (Kokila) and hermother (Latha Kannan) were waiting to present a poem written by Kokila onRajiv Gandhi.28. When Rajiv Gandhi arrived at the meeting place Nalini (A-1) and Subagot out of the enclosure and moved away. Rajiv Gandhi went near the littlegirl Kokila. He would have either received the poem or was about to receivethe same, and at that moment the hideous battery switch was clawed by theassassin herself. Suddenly the pawn bomb got herself blown up as theincendiary device exploded with a deadening sound. All human lives within acertain radius were smashed to shreds. The head of a female, without itstorso, was seen flinging up in the air and rolling down. In a twinkle, 18human lives were turned into fragments of flesh among which was includedthe former Prime Minister of India Rajiv Gandhi and his personal securitymen, besides Dhanu and Haribabu. Many others who sustained injuries in theexplosion, however, survived.29. Thus the conspirators perpetrated their prime target achievement at10.19 p.m. on 21-5-1991 at Sriperumbudur in Tamil Nadu.Closely followed, after the above occurrence, the Principal Secretary tothe Government of Tamil Nadu addressed a D.O. letter dated 22.05.1991 tothe Joint Secretary to the Government of India, conveying the order of theGovernment of Tamil Nadu expressing its consent under Section 6 of theDelhi Special Police Establishment Act 1946 to the extension of powers andjurisdiction of members of the Delhi Special Police Establishment toinvestigate the case in Crime No.329/91 under Sections 302, 307 and 326 IPCand under Section 3 & 5 of The Explosive Substances Act, registered inSriperumbudur police station, Changai Anna (West) District, Tamil Nadu,relating to the death of Late Rajiv Gandhi, former Prime Minister of Indiaon 21.05.1991. The Notification of the Government of Tamil Nadu underSection 6 of the 1946 Act mentioned the State of Tamil Nadu’s consent tothe extension of powers to the members of Delhi Special PoliceEstablishment in the WHOLE of the State of Tamil Nadu for the investigationof the crime in Crime No.329/91. In turn, the Government of India, Ministryof Personnel, Public Grievances and Pensions, Department of Personnel andTraining passed its Notification dated 23.05.1991 extending power andjurisdiction of the members of the Delhi Special Police Establishment tothe WHOLE of the State of Tamil Nadu for investigation in respect of crimeNo.329/91. That is how the Central Government came into the picture in theinvestigation of the crime, the conviction by the Special Court of 26persons and the ultimate confirmation insofar as it was against the presentRespondents alone setting aside the conviction as against the 19 accused.The above noted facts disclose that the case is covered by Section435(1)(a) of Code of Criminal Procedure. Therefore, as per Section 435(1)the power of State Government to remit or commute the sentence underSections 432 and 433 Code of Criminal Procedure should not be exercisedexcept after due ‘Consultation’ with the Central Government. Since theexpression ‘shall’ is used in the said sub-section, it is mandatory for theState Government to resort to the ‘Consultation’ process without which, thepower cannot be exercised. As rightly submitted by the learned SeniorCounsel for the State of Tamil Nadu, such ‘Consultation’ cannot be an emptyformality and it should be an effective one. While on the one hand thepower to grant remission under Section 432 and commute the sentence underSection 433 conferred on the Appropriate Government is available, as wehave noted, the exercise of such power insofar as it related to remissionor suspension under Section 432 is not suo motu, but can be made only basedon an application and also circumscribed by the other provisions, namely,Section 432(2), whereby the opinion of the Presiding Judge who imposed orconfirmed the conviction should be given due consideration. Further, wehave also explained how to ascertain as to who will be the AppropriateGovernment as has been stipulated under Section 432(7) of Code of CriminalProcedure which applied to the exercise of power both under Section 432 andas well as 433 Code of Criminal Procedure In this context, we have alsoanalyzed as to how far the proviso to Article 73(1) (a) of the Constitutionwill ensure greater Executive Power on the Centre over the State whereverthe State Legislature has also got power to make laws. Having analyzed theimplication of the said proviso, vis-à-vis, Articles 161, 162 and Entry 1and 2 of List III of the Seventh Schedule, by virtue of which, the CentralGovernment gets primacy as an Appropriate Government in matter of thiskind. Having regard to our above reasoning on the interpretation of theConstitutional provisions read along with the provisions of Code ofCriminal Procedure, our conclusion as to who will be the AppropriateGovernment has to be ascertained in every such case. In the event of theCentral Government becoming the Appropriate Government by applying thetests which we have laid based on Section 432(7) read along with theproviso to Article 73(1)(a) of the Constitution and the relevant entries ofList III of the Seventh Schedule of the Constitution, then in those casesthere would be no scope for the State Government to exercise its power atall under Section 432 Code of Criminal Procedure In the event of the StateGovernment getting jurisdiction as the Appropriate Government and aftercomplying with the requirement, namely, any application for remission beingmade by the person convicted and after obtaining the report of theconcerned Presiding Officer as required under Section 432(2), if Section435(1)(a) or (b) or (c) is attracted, then the question for considerationwould be whether the expression ‘‘Consultation’’ is mere ‘Consultation’ orto be read as ‘‘Concurrence’’ of the Central Government.In this context, it will be advantageous to refer to the Nine-JudgeConstitution Bench decision of this Court reported in Supreme CourtAdvocates on Record Association (supra). In the majority judgment authoredby Justice J.S. Verma, the learned Judge while examining the questionreferred to the Bench on the interpretation of Articles 124(2) and 217(1)of the Constitution as it stood which related to appointment of Judges tothe Supreme Court and High Courts quoted the precautionary statement madeby Dr. Rajendra Prasad in his speech as President of the ConstituentAssembly while moving for adoption of the Constitution of India. A portionof the said quote relevant for our purpose reads as under:“429……….There is a fissiparous tendency arising out of various elements inour life. We have communal differences, caste differences, languagedifferences, provincial differences and so forth. It requires men of strongcharacter, men of vision, men who will not sacrifice the interests of thecountry at large for the sake of smaller groups and areas and who will riseover the prejudices which are born of these differences. We can only hopethat the country will throw up such men in abundance. … In India today Ifeel that the work that confronts us is even more difficult than the workwhich we had when we were engaged in the struggle. We did not have thenany conflicting claims to reconcile, no loaves and fishes to distribute, nopower to share. We have all these now, and the temptations are reallygreat. Would to God that we shall have the wisdom and the strength to riseabove them and to serve the country which we have succeeded in liberating”.Again in paragraph 432, the principle is stated as to how construction of aConstitutional Provision is to be analyzed which reads as under:“432. ……….A fortiori any construction of the Constitutional provisionswhich conflicts with this Constitutional purpose or negates the avowedobject has to be eschewed, being opposed to the true meaning and spirit ofthe Constitution and, therefore, an alien concept.” (Emphasis added) By thus laying down the broad principles to be applied, considered theconstruction of the expression ‘‘Consultation’’ to be made with the ChiefJustice of India for the purpose of composition of higher judiciary as usedin Article 124(2) and 217(1) of the Constitution and held as under inparagraph 433:“433. It is with this perception that the nature of primacy, if any, of theChief Justice of India, in the present context, has to be examined in theConstitutional scheme. The hue of the word ‘‘Consultation’’, when the‘Consultation’ is with the Chief Justice of India as the head of the IndianJudiciary, for the purpose of composition of higher judiciary, has to bedistinguished from the colour the same word ‘‘Consultation’’ may take inthe context of the executive associated in that process to assist in theselection of the best available material.”Thereafter tracing the relevant provisions in the pre-Constitutional era,namely, the Government of India Act, 1919, and the Government of India Act,1935, wherein the appointment of Judges of the Federal Court and the HighCourts were in the absolute discretion of the Crown or in other words, ofthe Executive with no specific provision for ‘Consultation’ with the ChiefJustice in the appointment process, further noted, the purpose for whichthe obligation of ‘‘Consultation’’ with the Chief Justice of India and theChief Justice of the High Court in Articles 124(2) and 217(1) came to beincorporated was highlighted. Thereafter, the Bench expressed its reasoningas to why in the said context, the expression ‘‘Consultation’’ was usedinstead of ‘‘Concurrence’’. Paragraph 450 of the said judgment gives enoughguidance to anyone dealing with such issue which reads as under:“450. It is obvious, that the provision for ‘Consultation’ with the ChiefJustice of India and, in the case of the High Courts, with the ChiefJustice of the High Court, was introduced because of the realisation thatthe Chief Justice is best equipped to know and assess the worth of thecandidate, and his suitability for appointment as a superior Judge; and itwas also necessary to eliminate political influence even at the stage ofthe initial appointment of a Judge, since the provisions for securing hisindependence after appointment were alone not sufficient for an independentjudiciary. At the same time, the phraseology used indicated that givingabsolute discretion or the power of veto to the Chief Justice of India asan individual in the matter of appointments was not considered desirable,so that there should remain some power with the executive to be exercisedas a check, whenever necessary. The indication is, that in the choice of acandidate suitable for appointment, the opinion of the Chief Justice ofIndia should have the greatest weight; the selection should be made as aresult of a participatory consultative process in which the executiveshould have power to act as a mere check on the exercise of power by theChief Justice of India, to achieve the Constitutional purpose. Thus, theexecutive element in the appointment process is reduced to the minimum andany political influence is eliminated. It was for this reason that the word‘‘Consultation’’ instead of ‘‘Concurrence’’ was used, but that was donemerely to indicate that absolute discretion was not given to anyone, noteven to the Chief Justice of India as an individual, much less to theexecutive, which earlier had absolute discretion under the Government ofIndia Acts.” (Emphasis added)We must state that in the first place, whatever stated by the said largerConstitution Bench while interpreting an expression in a Constitutionalprovision, having regard to its general application can be equally appliedwhile interpreting a similar expression in any other statute. We find thatthe basic principles set out in the above quoted paragraphs of the saiddecision can be usefully referred to, relied upon and used as a test whileexamining a similar expression used, namely, in Section 435(1) of Code ofCriminal Procedure. While quoting the statement of Dr. Rajendra Prasad,what was highlighted was the various differences that exist in our countryincluding ‘provincial differences’, the necessity to ensure that men willnot sacrifice the interests of the country at large for the sake of smallergroups and areas, the existence of conflicting claims to reconcile afterour liberation, and the determination to save the country rather thanyielding to the pressure of smaller groups. It was also stated in thecontext of Articles 124(2) and 217(1) as to how the independence ofjudiciary to be the paramount criteria and any construction that conflictwith such said avowed object of the Constitution to be eschewed.Thereafter, while analyzing the primacy of the Chief Justice of India forthe purpose of appointment of Judges, analyzed as to how our Constitutionalfunctionary qua the others who together participate in the performance ofthe function assumes significance only when they cannot reach an agreedconclusion. It was again stated as to see who would be best equipped andlikely to be more correct for achieving the purpose and perform the tasksatisfactorily. It was stated that primacy should be in one who qualifiesto be treated as the ‘expert’ in the field and comparatively greater weightto his opinion may then to be attached. We find that the above testsindicated in the larger Constitution Bench judgment can be applied in asituation like the one which we are facing at the present juncture.Again in a recent decision of this Court reported in R.A. Mehta (Retired)(supra) to which one of us was a party (Fakkir Mohamed Ibrahim Kalifulla,J.) it was held as under in paragraph 32:“32. Thus, in view of the above, the meaning of “Consultation’” varies fromcase to case, depending upon its fact situation and the context of thestatute as well as the object it seeks to achieve. Thus, no straitjacketformula can be laid down in this regard. Ordinarily, ‘Consultation’ means afree and fair discussion on a particular subject, revealing all materialthat the parties possess in relation to each other and then arriving at adecision. However, in a situation where one of the consultees has primacyof opinion under the statute, either specifically contained in a statutoryprovision, or by way of implication, ‘Consultation’ may mean ‘Concurrence’.The court must examine the fact situation in a given case to determinewhether the process of ‘Consultation’ as required under the particularsituation did in fact stand complete.” (Emphasis added) The principles laid down in the larger Constitution Bench decisionreported in Supreme Court Advocates on Record Association (supra) was alsofollowed in N. Kannadasan (supra).While noting the above principles laid down in the larger ConstitutionBench decision and the subsequent decisions on the interpretation of theexpression, we must also duly refer to the reliance placed upon thedecision in S.R. Bommai (supra), Johri Mal (supra) and JusticeChandrashekaraiah (Retired) (supra). The judgment in S.R. Bommai (supra) isagain a larger Constitution Bench of Nine-Judges known as Bommai case(supra), in which our attention was drawn to paragraphs 274 to 276,wherein, Justice B.P. Jeevan Reddy pointed out that ‘federation’ or‘federal form of Government’ has no fixed meaning, that it only broadlyindicates a division of powers between the Centre and the States, and thatno two federal Constitutions are alike. It was stated that, therefore, itwill be futile to try to ascertain and fit our Constitution into anyparticular mould. It was also stated that in the light of our historicalprocess and the Constitutional evolution, ours is not a case of independentStates coming together to form a federation as in the case of U.S.A. Thelearned judge also explained that the founding fathers of our Constitutionwished to establish a strong Centre and that in the light of the pasthistory of this sub-continent such a decision was inevitably takenperforce. It was also stated that the establishment of a strong Centre wasa necessity. It will be appropriate to extract paragraph 275 to appreciatethe analysis of the scheme of the Constitution made by the learned Judgewhich reads as under:“275. A review of the provisions of the Constitution shows unmistakablythat while creating a federation, the Founding Fathers wished to establisha strong Centre. In the light of the past history of this sub-continent,this was probably a natural and necessary decision. In a land as varied asIndia is, a strong Centre is perhaps a necessity. This bias towards Centreis reflected in the distribution of legislative heads between the Centreand States. All the more important heads of legislation are placed in ListI. Even among the legislative heads mentioned in List II, several of them,e.g., Entries 2, 13, 17, 23, 24, 26, 27, 32, 33, 50, 57 and 63 are eitherlimited by or made subject to certain entries in List I to some or theother extent. Even in the Concurrent List (List III), the parliamentaryenactment is given the primacy, irrespective of the fact whether suchenactment is earlier or later in point of time to a State enactment on thesame subject-matter. Residuary powers are with the Centre. By the 42ndAmendment, quite a few of the entries in List II were omitted and/ortransferred to other lists. Above all, Article 3 empowers Parliament toform new States out of existing States either by merger or division as alsoto increase, diminish or alter the boundaries of the States. In theprocess, existing States may disappear and new ones may come intoexistence. As a result of the Reorganisation of States Act, 1956, fourteenStates and six Union Territories came into existence in the place of twenty-seven States and one area. Even the names of the States can be changed byParliament unilaterally. The only requirement, in all this process, beingthe one prescribed in the proviso to Article 3, viz., ascertainment of theviews of the legislatures of the affected States. There is singlecitizenship, unlike USA. The judicial organ, one of the three organs of theState, is one and single for the entire country — again unlike USA, whereyou have the federal judiciary and State judiciary separately. Articles 249to 252 further demonstrate the primacy of Parliament. If the Rajya Sabhapasses a resolution by 2/3rd majority that in the national interest,Parliament should make laws with respect to any matter in List II,Parliament can do so (Article 249), no doubt, for a limited period. Duringthe operation of a Proclamation of emergency, Parliament can make laws withrespect to any matter in List II (Article 250). Similarly, Parliament haspower to make laws for giving effect to International Agreements (Article253). So far as the finances are concerned, the States again appear to havebeen placed in a less favourable position, an aspect which has attracted agood amount of criticism at the hands of the States and the proponents ofthe States’ autonomy. Several taxes are collected by the Centre and madeover, either partly or fully, to the States. Suffice it to say that Centrehas been made far more powerful vis-a-vis the States. Correspondingly,several obligations too are placed upon the Centre including the one inArticle 355 — the duty to protect every State against external aggressionand internal disturbance. Indeed, this very article confers greater powerupon the Centre in the name of casting an obligation upon it, viz., “toensure that the Government of every State is carried on in accordance withthe provisions of this Constitution”. It is both a responsibility and apower.”After making reference to the division of powers set out in the variousArticles as well as the Lists I to III of Seventh Schedule and itspurported insertion in the Constitutional provisions, highlighted the needfor empowering the Centre on the higher side as compared with the Stateswhile also referring to the corresponding obligations of the Centre. Whilereferring to Article 355 of the Constitution in that context, it was said“the duty to protect every State against external aggression and internaldisturbance. Indeed this very Article confers greater power upon the Centrein the name of casting an obligation upon it (viz.) to ensure that theGovernment of every State is carried on in accordance with the provisionsof this Constitution”. It is both a responsibility and a power.Simultaneously, in paragraph 276, the learned Judge also noted that whileunder the Constitution, greater power is conferred upon the Centre viz-a-viz the States, it does not mean that States are mere appendages of theCentre and that within the sphere allotted to them, States are supreme. Itwas, therefore, said that Courts should not adopt and approach, aninterpretation which has the effect of or tend to have the effect ofwhittling down the powers reserved to the States. Ultimately, the learnedJudge noted a word of caution to emphasize that Courts should be carefulnot to upset the delicately crafted Constitutional scheme by a process ofinterpretation.In Johri Mal (supra), this Court considered the effect of the expression‘‘Consultation’’ contained in The Legal Remembrancer’s Manual, in the Stateof Uttar Pradesh which provides in Clause 7.03 the requirement of‘Consultation’ by the District Officer with the District Judge beforeconsidering anyone for being appointed as District Government council. Inthe said judgment it was noticed that in Uttar Pradesh, the Stategovernment by way of amendment omitted sub-sections (1), (4) (5) and (6) ofSection 24 which provided for ‘‘Consultation’’ with the High Court forappointment of Public Prosecutor for the High Court and with District Judgefor appointment of such posts at the District level. Therefore, the onlyproviso akin to such prescription was made only in The Legal Remembrancer’sManual which is a compilation of executive order and not a ‘Law’ within themeaning of Article 13 of the Constitution. In the light of the saidsituation, this Court while referring to Supreme Court Advocates on RecordAssociation (supra) made a distinction as to how the appointment ofDistrict Government counsel cannot be equated with the appointment of HighCourt Judges and Supreme Court Judges in whose appointment this Court heldthat the expression ‘‘Consultation’’ would amount to ‘‘Concurrence’’. Itwas, however, held that even in the case of appointment of DistrictGovernment counsel, the ‘Consultation’ by the District Magistrate with theDistrict Judge should be an effective one. Similarly, in the judgmentreported in Justice Chandrasekaraiah (Retd.) (supra) this Court consideredthe expression ‘‘Consultation’’ occurring in Section 3 (2) (a) (b) of theKarnataka Lok Ayukta Act, 1984 relating to appointment of Lokayukta and Upa-Lokayukta, took the view that while ‘Consultation’ by the Chief Ministerwith the Chief Justice as one of the consultees is mandatory, since theappointment to those positions is not a judicial or Constitutionalauthority but is a sui generis quasi judicial authority, ‘Consultation’will not amount to ‘‘Concurrence’’. Therefore, the said judgment is alsoclearly distinguishable.Having considered the submissions of the respective counsel for the Unionof India, State of Tamil Nadu and the other counsel and also the largerConstitution Bench decisions and the subsequent decisions of this Court aswell as the specific prescription contained in Section 435(1)(a) read alongwith Articles 72, 73(i)(a), 161 and 162 of the Constitution, the followingprinciples can be derived to note how and in what manner the expression‘‘Consultation’’ occurring in Section 435(1)(a) can be construed:-Section 435(1) mandatorily requires the State Government, if it is the‘Appropriate Government’ to consult the Central Government if theconsideration of grant of remission or commutation under Section 432 or 433in a case which falls within any of the three sub-clauses (a)(b)(c) ofSection 435(1).The expression ‘‘Consultation’’ may mean differently in different situationdepending on the nature and purpose of the statute.When it came to the question of appointment of judges to the High Court andthe Supreme Court, since it pertains to high Constitutional office, thestatus of Chief Justice of India assumed greater significance and primacyand, therefore, in that context, the expression ‘‘Consultation’’ would onlymean ‘‘Concurrence’’.While considering the appointment to the post of Chairman of State ConsumerForum, since the said post comes within four corners of judicial posthaving regard to the nature of functions to be performed, ‘Consultation’with the Chief Justice of the High Court would give primacy to the ChiefJustice.The founding fathers of our Nation wished to establish a strong Centretaking into account the past history of this subcontinent which was underthe grip of very many foreign forces by taking advantage of the communaldifferences, caste differences, language differences, provincialdifferences and so on which necessitated men of strong character, men ofvision, men who will not sacrifice the interest of the Nation for the sakeof smaller groups and areas and who will rise above the prejudices whichare born of these differences, as visualized by the first President of thisNation Dr. Rajendra Prasad.Again in the golden words of that great personality, in the pre-independence era while we were engaged in the struggle we did not have anyconflicting claims to reconcile, no loaves and fishes to distribute, nopower to share and we have all these now and the temptations are reallygreat. Therefore, we should rise above all these, have the wisdom andstrength and save the country which we got liberated after a greatstruggle.The ratio and principles laid down by this Court as regards theinterpretation and construction of Constitutional provisions whichconflicts with the Constitutional goal to be achieved should be eschewedand interest of the Nation in such situation should be the paramountconsideration. Such principles laid down in the said context should equallyapply even while interpreting a statutory provision having application atthe National, level in order to achieve the avowed object of Nationalintegration and larger public interest.The nature of ‘Consultation’ contemplated in Section 435(1) (a) has to beexamined in the touchstone of the above principles laid down by the largerBench judgment in Supreme Court Advocates on Record Association (supra). Inthis context, the specific reference made therein to the statement of Dr.Rajendra Prasad, namely, where various differences that exist, in ourcountry including provincial differences, the necessity to ensure that menwill not sacrifice the interest of the country at large, for the sake ofsmaller groups and areas assumes significance.To ascertain, in this context, when more than one authority or functionaryparticipate together in the performance of a function, who assumessignificance, keeping in mind the various above principles and objectivesto be achieved, who would be best equipped and likely to be more correctfor achieving the purpose and perform the task satisfactorily insafeguarding the interest of the entire community of this Great Nation.Accordingly, primacy in one who qualifies to be treated as in know ofthings far better than any other, then comparatively greater weight totheir opinion and decision to be attached.To be alive to the real nature of Federal set up, we have in our country,which is not comparable with any other country and having extraordinarilydifferent features in different States, say different religions, differentcastes, different languages, different cultures, vast difference betweenthe poor and the rich, not a case of independent States coming together toform a Federation as in the case of United States of America. Therefore,the absolute necessity to establish a strong Centre to ensure that when itcomes to the question of Unity of the Nation either from internaldisturbance or any external aggression, the interest of the Nation isprotected from any evil forces. The establishment of a strong Centre wastherefore a necessity as felt by our founding fathers of the Nation. Inthis context Article 355 of the Constitution requires to be noted underwhich, the Centre is entrusted with the duty to protect every State againstexternal aggression and internal disturbance and also to ensure that theGovernment of every State is carried on in accordance with the provisionsof the Constitution. However, within the spheres allotted to the respectiveStates, they are supreme.In the light of the above general principles, while interpreting Section435(1)(a) which mandates that any State Government while acting as the‘Appropriate Government’ for exercising its powers under Sections 432 and433 of Code of Criminal Procedure and consider for remission or commutationto necessarily consult the Central Government. In this context therequirement of the implication of Section 432(7) (a) has to be kept inmind, more particularly in the light of the prescription contained inArticle 73(1)(a) and Article 162 read along with its proviso, which assertsthe status of the Central Government Authorities as possessing allpervasive right to hold the Executive Power by virtue of express confermentunder the Constitution or under any law made by the Parliament though theState Legislature may also have the power to make laws on those subjects.In a situation as the one arising in the above context, it must be stated,that by virtue of such status available with the Central Governmentpossessing the Executive Power, having regard to the pronouncement of thelarger Constitution Bench decision of this Court in Supreme Court Advocateson Record Association (supra) and S.R. Bommai (supra), the Executive Powerof the Center should prevail over the State as possessing higherConstitutional power specifically adorned on the Central Government underArticle 73(1)(a).Cases, wherein, the investigation is held by the agencies under the DelhiSpecial Police Establishment Act, 1946 or by any other agency engaged tomake investigation into an offence under the Central Act other than theCode of Criminal Procedure, and where such offences investigated assumessignificance having regard to the implication that it caused or likely tocause in the interest of the Nation or in respect of National figures ofvery high status by resorting to diabolic criminal conduct at the instanceof any person whether such person belong to this country or of any foreignorigin, either individually or representing anybody of personnel or anorganization or a group, it must be stated that such situation shouldnecessarily be taken as the one coming within the category of internal orexternal aggression or disturbance and thereby casting a duty on the Centreas prescribed under Article 355 of the Constitution to act in the interestof the Nation as a whole and also ensure that the Government of every Stateis carried in accordance with the provisions of the Constitution. Suchsituation cannot held to be interfering with the independent existence ofthe State concerned.Similar test should be applied where application of Section 435(1) (b) or(c). It can be visualized that where the property of the Central Governmentreferred to relates to the security borders of this country or the propertyin the control and possession of the Army or other security forces of thecountry or the warships or such other properties or the personnel happen tobe in the services of the Centre holding very sensitive positions and inpossession of very many internal secrets or other vulnerable informationand indulged in conduct putting the interest of the Nation in peril, itcannot be said that in such cases, the nature of ‘Consultation’ will be amere formality. It must be held that even in those cases the requirement of‘Consultation’ will assume greater significance and primacy to the Center.It must also be noted that the nature of requirement contemplated andprescribed in Section 435(1) and (2) is distinct and different. As becausethe expression ‘‘Concurrence’’ is used in sub-section (2) it cannot be heldthat the expression ‘‘Consultation’’ used in sub-section (1) is lesser inforce. As was pointed out by us in sub-para ‘n’, the situations arisingunder sub-section (1) (a) to (c) will have far more far reachingconsequences if allowed to be operated upon without proper check.Therefore, even though the expression used in sub-section (1) is‘Consultation’, in effect, the said requirement is to be expressed far morestrictly and with utmost care and caution, as each one of the sub-clauses(a) to (c) contained in the said sub-section, if not properly applied inits context may result in serious violation of Constitutional mandate ashas been set out in Article 355 of the Constitution. It is thereforeimperative that it is always safe and appropriate to hold that in thosesituations covered by sub-clauses (a) to (c) of Section 435(1) fallingwithin the jurisdiction of Central Government, it will assume primacy andconsequently the process of ‘‘Consultation’’ should in reality be held asthe requirement of ‘‘Concurrence’’.For our present purpose, we can apply the above principles to the caseswhich come up for consideration, including the one covered by the presentWrit Petition. Having paid our detailed analysis as above on the variousquestions, we proceed to answer the questions in seriatim.Answer to the preliminary objection as to the maintainability of the WritPetition:Writ Petition at the instance of Union of India is maintainable.Answers to the questions referred in seriatimQuestion 52.1 Whether imprisonment for life in terms of Section 53 readwith Section 45 of the Penal Code meant imprisonment for rest of the lifeof the prisoner or a convict undergoing life imprisonment has a right toclaim remission and whether as per the principles enunciated in paras 91 to93 of Swamy Shraddananda (2), a special category of sentence may be madefor the very few cases where the death penalty might be substituted by thepunishment of imprisonment for life or imprisonment for a term in excess offourteen years and to put that category beyond application of remission?Ans. Imprisonment for life in terms of Section 53 read with Section 45 ofthe Penal Code only means imprisonment for rest of life of the convict.The right to claim remission, commutation, reprieve etc. as provided underArticle 72 or Article 161 of the Constitution will always be availablebeing Constitutional Remedies untouchable by the Court.We hold that the ratio laid down in Swamy Shraddananda (supra) that aspecial category of sentence; instead of death can be substituted by thepunishment of imprisonment for life or for a term exceeding 14 years andput that category beyond application of remission is well-founded and weanswer the said question in the affirmative.Question No.52.2 Whether the “Appropriate Government” is permitted toexercise the power of remission under Sections 432/433 of the Code afterthe parallel power has been exercised by the President under Article 72 orthe Governor under Article 161 or by this Court in its Constitutional powerunder Article 32 as in this case?Ans. The exercise of power under Sections 432 and 433 of Code of CriminalProcedure will be available to the Appropriate Government even if suchconsideration was made earlier and exercised under Article 72 by thePresident or under Article 161 by the Governor. As far as the applicationof Article 32 of the Constitution by this Court is concerned, it is heldthat the powers under Sections 432 and 433 are to be exercised by theAppropriate Government statutorily and it is not for this Court to exercisethe said power and it is always left to be decided by the AppropriateGovernment.Question Nos. 52.3, 52.4 and 52.552.3 Whether Section 432(7) of the Code clearly gives primacy to theExecutive Power of the Union and excludes the Executive Power of the Statewhere the power of the Union is coextensive?52.4 Whether the Union or the State has primacy over the subject-matterenlisted in List III of the Seventh Schedule to the Constitution of Indiafor exercise of power of remission?52.5 Whether there can be two Appropriate Governments in a given case underSection 432(7) of the Code?Ans. The status of Appropriate Government whether Union Government or theState Government will depend upon the order of sentence passed by theCriminal Court as has been stipulated in Section 432(6) and in the event ofspecific Executive Power conferred on the Centre under a law made by theParliament or under the Constitution itself then in the event of theconviction and sentence covered by the said law of the Parliament or theprovisions of the Constitution even if the Legislature of the State is alsoempowered to make a law on the same subject and coextensive, theAppropriate Government will be the Union Government having regard to theprescription contained in the proviso to Article 73(1)(a) of theConstitution. The principle stated in the decision in G.V. Ramanaiah(supra) should be applied. In other words, cases which fall within thefour corners of Section 432(7)(a) by virtue of specific Executive Powerconferred on the Centre, the same will clothe the Union Government theprimacy with the status of Appropriate Government. Barring cases fallingunder Section 432(7)(a), in all other cases where the offender is sentencedor the sentence order is passed within the territorial jurisdiction of theconcerned State, the State Government would be the Appropriate Government.Question 52.6 Whether suo motu exercise of power of remission under Section432(1) is permissible in the scheme of the section, if yes, whether theprocedure prescribed in sub-section (2) of the same section is mandatory ornot?Ans. No suo motu power of remission is exercisable under Section 432(1) ofCode of Criminal Procedure It can only be initiated based on an applicationof the person convicted as provided under Section 432 (2) and that ultimateorder of suspension or remission should be guided by the opinion to berendered by the Presiding Officer of the concerned Court.Question No.52.7 Whether the term “Consultation” stipulated in Section435(1) of the Code implies “Concurrence”?Ans. Having regard to the principles culled out in paragraph 160 (a) to(n), it is imperative that it is always safe and appropriate to hold thatin those situations covered by sub-clauses (a) to (c) of Section 435(1)falling within the jurisdiction of the Central Government it will assumeprimacy and consequently the process of ‘‘Consultation’’ in reality be heldas the requirement of ‘‘Concurrence’’.We thus answer the above questions accordingly. …....….………..……………………C.J.I. [H.L. Dattu] …………………..………………………..J. [Fakkir Mohamed Ibrahim Kalifulla] …………….………………..…………….J. [Pinaki Chandra Ghose]New DelhiDecember 02, 2015 REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL ORIGINAL JURISDICTION WRIT PETITION (CRL.) NO.48 OF 2014UNION OF INDIA ETC. …. PETITIONERS VersusV. SRIHARAN @ MURUGAN & ORS. ETC. .… RESPONDENTS WITH WRIT PETITION (CRL.) NO.185 OF 2014 WRIT PETITION (CRL.) NO.150 OF 2014 WRIT PETITION (CRL.) NO.66 OF 2014 & CRIMINAL APPEAL NO.1215 OF 2011 J U D G M E N TUday Umesh Lalit, J.WRIT PETITION (CRL.) NO.48 OF 2014 This Writ Petition has been placed before the Constitution Bench pursuantto reference made by a Bench of three learned Judges of this Court in itsorder dated 25.04.2014[1], hereinafter referred to as the Referral Order.Background Facts:-On the night of 21.05.1991 Rajiv Gandhi, former Prime Minister of India wasassassinated by a human bomb at Sriperumbudur in Tamil Nadu. With himfifteen persons including nine policemen died and forty three personssuffered injuries. Crime No.329 of 1991 of Sriperumbudur Police Stationwas immediately registered. On 22.05.1991 a notification was issued by theGovernor of Tamil Nadu under Section 6 of Delhi Special PoliceEstablishment Act (Act No.25 of 1946) according consent to the extension ofthe powers and jurisdiction of the members of the Delhi PoliceEstablishment to the whole of the State of Tamil Nadu for the investigationof the offences in relation to Crime No.329 of 1991. This was followed bya notification issued by the Government of India on 23.05.1991 underSection 5 read with Section 6 of Act No.25 of 1946 extending such powersand jurisdiction to the whole of the State of Tamil Nadu for investigationof offences relating to Crime No. 329 of 1991. After due investigation, acharge of conspiracy for offences under the Terrorist and DisruptiveActivities (Prevention) Act, 1987 (TADA for short), Indian Penal Code (IPCfor short), Explosive Substances Act, 1908, Arms Act, 1959, Passport Act,1967, Foreigners Act, 1946 and the Indian Wireless Telegraphy Act, 1933 waslaid against forty-one persons, twelve of whom were already dead and threewere marked as absconding. Remaining twenty six persons faced the trialbefore the Designated Court which found them guilty of all the charges andawarded punishment of fine of varying amounts, rigorous imprisonment ofdifferent periods and sentenced all of them to death. The Designated Courtreferred the case to this Court for confirmation of death sentence of allthe convicts. The convicts also filed appeals against their conviction andthe sentence awarded to them. These cases were heard together.In the aforesaid Death Reference Cases and the appeals, this Court renderedits judgment on 11.05.1999, reported in State through Superintendent ofPolice, CBI/SIT v. Nalini and others[2]. At the end of the judgment, thefollowing order was passed by this Court:“732. The conviction and sentence passed by the trial court of the offencesof Section 3(3), Section 3(4) and Section 5 of the TADA Act are set asidein respect of all those appellants who were found guilty by the trial courtunder the said counts.733. The conviction and sentence passed by the trial court of the offencesunder Sections 212 and 216 of the Indian Penal Code, Section 14 of theForeigners Act, 1946, Section 25(1-B) of the Arms Act, Section 5 of theExplosive Substances Act, Section 12 of the Passport Act and Section 6(1-A)of the Wireless Telegraphy Act, 1933, in respect of those accused who werefound guilty of those offences, are confirmed. If they have alreadyundergone the period of sentence under those counts it is for the jailauthorities to release such of those against whom no other conviction andsentence exceeding the said period have been passed.734. The conviction for the offence under Section 120-B read with Section302 Indian Penal Code as against A-1 (Nalini), A-2 (Santhan @ Raviraj), A-3(Murugan @ Thas), A-9 (Robert Payas), A-10 (Jayakumar), A-16 (Ravichandran@ Ravi) and A-18 (Perarivalan @ Arivu) is confirmed.735. We set aside the conviction and sentence of the offences underSection 302 read with Section 120-B passed by the trial court on theremaining accused.736. The sentence of death passed by the trial court on A-1 (Nalini), A-2(Santhan), A-3 (Murugan) and A-18 (Arivu) is confirmed. The death sentencepassed on A-9 (Robert), A-10 (Jayakumar) and A-16 (Ravichandran) is alteredto imprisonment for life. The Reference is answered accordingly.737. In other words, except A-1 (Nalini), A-2 (Santhan), A-3 (Murugan), A-9 (Robert Payas), A-10 (Jayakumar), A-16 (Ravichandran) and A-18 (Arivu),all the remaining appellants shall be set at liberty forthwith.”Two sets of Review Petitions were preferred against the aforesaid judgmentdated 11.05.1999. One was by convicts A-1, A-2, A-3 and A-18 on thequestion of death sentence awarded to them. These convicts did notchallenge their conviction. The other was by the State through CentralBureau of Investigation (CBI for short), against that part of the judgmentwhich held that no offence under Section 3(3) of TADA was made out. TheseReview Petitions were dismissed by order dated 08.10.1999[3]. Wadhwa, J.with whom Quardi J. concurred, did not find any error in the judgmentsought to be reviewed and therefore dismissed both sets of ReviewPetitions. Thomas J. opined that the Review Petition filed in respect of A-1 (Nalini) alone be allowed and her sentence be altered to imprisonment forlife. Thus, in the light of the order of the majority, these ReviewPetitions were dismissed.The convicts A-1, A-2, A-3 and A-18 then preferred Mercy Petitions beforethe Governor of Tamil Nadu on 17.10.1999 which were rejected on 27.10.1999. The rejection was challenged before Madras High Court which by its orderdated 25.11.1999 set-aside the order of rejection and directedreconsideration of those Mercy Petitions. Thereafter Mercy Petition of A-1(Nalini) was allowed while those in respect of the convicts A-2, A-3 and A-18 were rejected by the Governor on 25.04.2000. Said convicts A-2, A-3 andA-18 thereafter preferred Mercy Petitions on 26.4.2000 to the President ofIndia under Article 72 of the Constitution. The Mercy Petitions wererejected by the President on 12.08.2011 which led to the filing of WritPetitions in Madras High Court. Those Writ Petitions were transferred bythis Court to itself by order dated 01.05.2012[4]. By its judgment dated18.02.2014 in V. Sriharan @ Murugan v. Union of India and others[5] a Benchof three learned Judges of this Court commuted the death sentences awardedto convicts A-2, A-3 and A-18 to that of imprisonment for life and passedcertain directions. Paragraph 32 of the judgment is quoted hereunder:“32.8 In the light of the above discussion and observations, in the casesof V. Sriharan alias Murugan, T. Suthendraraja alias Santhan and A.G.Perarivalan alias Arivu, we commute their death sentence into imprisonmentfor life. Life imprisonment means end of one’s life, subject to anyremission granted by the appropriate Government under Section 432 of theCode of Criminal Procedure, 1973 which, in turn, is subject to theprocedural checks mentioned in the said provision and further substantivecheck in Section 433-A of the Code. All the writ petitions are allowed onthe above terms and the transferred cases are, accordingly, disposed of.”On the next day i.e. 19.02.2014 Chief Secretary, Government of Tamil Naduwrote to the Secretary, Government of India, Ministry of Home Affairs thatGovernment of Tamil Nadu proposed to remit the sentence of lifeimprisonment imposed on convicts A-2, A-3 and A-18 as well as on the otherconvicts namely A-9, A-10 and A-16. It stated that these six convictedaccused had already served imprisonment for 23 years, that since the crimewas investigated by the CBI, as per Section 435 of Cr.P.C. the CentralGovernment was required to be consulted and as such the Central Governmentwas requested to indicate its views within three days on the proposal toremit the sentence of life imprisonment and release those six convicts.7. Union of India immediately filed Crl.M.P. Nos.4623-25 of 2014 on20.02.2014 in the cases which were disposed of by the judgment dated18.02.20145 praying that the State of Tamil Nadu be restrained fromreleasing the convicts. On 20.02.2014 said Crl.M.P. Nos.4623-25 of 2014were taken up by this Court and the following order was passed: “Taken on Board.Issue notice to the State of Tamil Nadu; Inspector General of Prisons,Chennai; the Superintendent, Central Prison, Vellore and the convicts viz.V. Sriharan @ Murugan, T. Suthendraraja @ Santhan and A.G. Perarivalan @Arivu returnable on 6th March, 2014.Mr. Rakesh Dwivedi, learned senior counsel accepts notice on behalf of theState of Tamil Nadu and other two officers.Till such date, both parties are directed to maintain status quo prevailingas on date in respect of convicts viz. V. Sriharan @ Murugan, T.Suthendraraja @ Santhan and A.G. Perarivalan @ Arivu.List on 6th March, 2014.”8. On 20.02.2014 Union of India filed Review Petitions being R.P. (Crl.)Nos.247-249 of 2014 against the judgment dated 18.02.20145 which were laterdismissed on 01.04.2014. It also filed Writ Petition No.48 of 2014 i.e. thepresent writ petition on 24.02.2014 with following prayer:“(a) Issue an appropriate writ in the nature of a mandamus, or certiorari,and quash the letter no.58720/Cts IA/2008 dated 19.02.2014 and the Decisionof the Respondent no.8, Government of Tamil Nadu to considercommutation/remission of the sentences awarded to the Respondents No.1 to7;”9. After hearing rival submissions in the present writ petition, theReferral Order was passed which formulated and referred seven questions forthe consideration of the Constitution Bench. Paragraph Nos. 49 and 52 to54 of the Referral Order were to the following effect:- “49. The issue of such a nature has been raised for the first timein this Court, which has wide ramification in determining the scope ofapplication of power of remission by the executives, both the Centre andthe State. Accordingly, we refer this matter to the Constitution Bench todecide the issue pertaining to whether once power of remission underArticles 72 or 161 or by this Court exercising constitutional power underArticle 32 is exercised, is there any scope for further consideration forremission by the executive.”52. The following questions are framed for the consideration of theConstitution Bench:52.1. Whether imprisonment for life in terms of Section 53 read withSection 45 of the Penal Code meant imprisonment for rest of the life of theprisoner or a convict undergoing life imprisonment has a right to claimremission and whether as per the principles enunciated in paras 91 to 93 ofSwamy Shraddananda(2)[6] a special category of sentence may be made for thevery few cases where the death penalty might be substituted by thepunishment of imprisonment for life or imprisonment for a term in excess offourteen years and to put that category beyond application of remission?52.2. Whether the “appropriate Government” is permitted to exercise thepower of remission under Sections 432/433 of the Code after the parallelpower has been exercised by the President under Article 72 or the Governorunder Article 161 or by this Court in its constitutional power underArticle 32 as in this case?52.3. Whether Section 432(7) of the Code clearly gives primacy to theexecutive power of the Union and excludes the executive power of the Statewhere the power of the Union is co-extensive?52.4. Whether the Union or the State has primacy over the subject-matterenlisted in List III of the Seventh Schedule to the Constitution of Indiafor exercise of power of remission?52.5. Whether there can be two appropriate Governments in a given caseunder 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 procedureprescribed in sub-section (2) of the same section is mandatory or not?52.7. Whether the term “consultation” stipulated in Section 435(1) of theCode implies “concurrence”?53. All the issues raised in the given case are of utmost critical concernfor the whole of the country, as the decision on these issues willdetermine the procedure for awarding sentences in the criminal justicesystem. Accordingly, we direct to list Writ Petition (Crl.) No. 48 of 2014before the Constitution Bench as early as possible, preferably within aperiod of three months.54. All the interim orders granted earlier will continue till a finaldecision is taken by the Constitution Bench in Writ Petition (Crl.) No. 48of 2014.”10. In terms of the Referral Order, this petition came up before theConstitution Bench on 09.03.2014 which issued notices to all the StateGovernments and pending notice the State Governments were restrained fromexercising power of remission to life convicts. This order wassubsequently varied by this Court on 23.07.2015 and the order so varied ispresently in operation. While the present writ petition was underconsideration by this Court, Curative Petitions Nos.22-24 of 2015 arisingout of the dismissal of the review petition vide order dated 01.04.2014came up before this Court which were dismissed by order dated 28.07.2015.PRELIMINARY OBJECTIONS11. At the outset when the present writ petition was taken up forhearing, Mr. Rakesh Dwivedi, learned Senior Advocate appearing for theState of Tamil Nadu and Mr. Ram Jethmalani, learned Senior Advocateappearing for the respondents convicts raised preliminary objectionsregarding maintainability of this writ petition at the instance of Unionof India. It was argued that in the petition as originally filed, nothingwas indicated about alleged violation of any fundamental right of any oneand it was only when the State had raised preliminary submissions, thatadditional grounds were preferred by Union of India seeking to espouse thecause of the victims. It was submitted that the issues sought to be raisedby Union of India as regards the powers and jurisdiction of the State ofTamil Nadu were essentially federal in nature and that the only remedyavailable for agitating such issues could be through a suit under Article131 of the Constitution. In response, it was submitted by Mr. Ranjit Kumar,learned Solicitor General that neither at the stage when the Referral Orderwas passed, nor at the stage when notices were issued to various StateGovernments, such preliminary objections were advanced and that the issuehad now receded in the background. It was submitted that after CriminalLaw Amendment Act 2013, rights of victims stand duly recognized and thatthe instant crime having been investigated by the CBI, Union of India inits capacity as parens patriae was entitled to approach this Court underArticle 32. It was submitted that since private individuals, namely theconvicts were parties to this lis, a suit under Article 131 would not be aproper remedy. We find considerable force in the submissions of thelearned Solicitor General. Having entertained the petition, issued noticesto various State Governments, entertained applications for impleadment andgranted interim orders, it would not be appropriate at this stage toconsider such preliminary submissions. At this juncture, the followingpassage from the judgment of the Constitution Bench in Mohd. Aslam aliasBhure v. Union of India and others[7] would guide us:-“10. On several occasions this Court has treated letters, telegrams orpostcards or news reports as writ petitions. In such petitions, on thebasis of pleadings that emerge in the case after notice to differentparties, relief has been given or refused. Therefore, this Court would notapproach matters where public interest is involved in a technical or anarrow manner. Particularly, when this Court has entertained this petition,issued notice to different parties, new parties have been impleaded andinterim order has also been granted, it would not be appropriate for thisCourt to dispose of the petition on that ground.” In the circumstances, we reject the preliminary submissions andproceed to consider the questions referred to us.DISCUSSION12. We have heard Mr. Ranjit Kumar, learned Solicitor General, assistedby Ms. V. Mohana, learned Senior Advocate for Union of India. Thesubmissions on behalf of the State Governments were led by Mr. RakeshDwivedi, learned Senior Advocate who appeared for the States of Tamil Naduand West Bengal, Mr. Ram Jethmalani, learned Senior Advocate and Mr. YugMohit Chaudhary, learned Advocate appeared for respondents – convicts,namely, A-2, A-3, A-18, A-9, A-10 and A-16. We have also heard Mr. RaviKumar Verma, learned Advocate General for Karnataka, Mr. A.N.S. Nadkarni,learned Advocate General for Goa, Mr. V. Giri, learned Senior Advocate forState of Kerala, Mr. Gaurav Bhatia, learned Additional Advocate General forState of Uttar Pradesh, Mr. T.R. Andhyarujina, learned Senior Advocate forone of the intervenors and other learned counsel appearing for other StateGovernments, Union Territories and other intervenors. We are grateful forthe assistance rendered by the learned Counsel.13. The Challenge raised in the instant matter is principally to thecompetence of the State Government in proposing to remit or commutesentences of life imprisonment of the respondents-convicts and thecontention is that either the State Government has no requisite power orthat such power stands excluded. The questions referred for ourconsideration in the Referral Order raise issues concerning power ofremission and commutation and as to which is the “appropriate Government”entitled to exercise such power and as regards the extent and ambit of suchpower. It would therefore be convenient to deal with questions 3, 4 and 5as stated in Paras 52.3, 52.4 and 52.5 at the outset.Re: Question Nos.3, 4 and 5 as stated in para Nos.52.3, 52.4 and 52.5 ofthe Referral Order52.3. Whether Section 432(7) of the Code clearly gives primacy to theexecutive power of the Union and excludes the executive power of the Statewhere the power of the Union is co-extensive?52.4. Whether the Union or the State has primacy over the subject-matterenlisted in List III of the 7th Schedule to the Constitution of India forexercise of power of remission?52.5. Whether there can be two appropriate Governments in a given caseunder Section 432(7) of the Code?14. Powers to grant pardon and to suspend, remit or commute sentences areconferred by Articles 72 and 161 of the Constitution upon the President andthe Governor. Articles 72 and 161 are quoted here for ready reference:“72. Power of President to grant pardons, etc., and to suspend, remit orcommute sentences in certain cases.-The President shall have the power to grant pardons, reprieves, respites orremissions of punishment or to suspend, remit or commute the sentence ofany person convicted of any offence-in all cases where the punishment or sentence is by a Court Martial;in all cases where the punishment or sentence is for an offence against anylaw relating to a matter to which the executive power of the Union extends;in all cases where the sentence is a sentence of death.Nothing in sub-clause (a) of clause (1) shall affect the power conferred bylaw on any officer of the Armed Forces of the Union to suspend, remit orcommute a sentence passed by a Court Martial.Nothing in sub-clause (c) of clause (1) shall affect the power to suspend,remit or commute a sentence of death exercisable by the Governor of a Stateunder any law for the time being in force.“161. Power of Governor to grant pardons, etc, and to suspend, remit orcommute sentences in certain cases.-The Governor of a State shall have thepower to grant pardons, reprieves, respites or remissions of punishment orto suspend, remit or commute the sentence of any person convicted of anyoffence against any law relating to a matter to which the executive powerof the State extends.15. Before we turn to the matters in issue, a word about the nature ofpower under Articles 72 and 161 of the Constitution. In K.M. Nanavati v.State of Bombay[8] it was observed by Constitution Bench of this Court,“……. Pardon is one of the many prerogatives which have been recognizedsince time immemorial as being vested in the sovereign, wherever thesovereignty may lie…….”.In Kehar Singh and another v. Union of India and another[9] ConstitutionBench of this Court quoted with approval the following passage from U.S. v.Benz [75 Lawyers Ed. 354, 358]“The judicial power and the executive power over sentences are readilydistinguishable. To render judgment is a judicial function. To carry thejudgment into effect is an executive function. To cut short a sentence byan act of clemency is an exercise of executive power which abridges theenforcement of the judgment, but does not alter it qua a judgment. Toreduce a sentence by amendment alters the terms of the judgment itself andis a judicial act as much as the imposition of the sentence in the firstinstance.” The Constitution Bench further observed: “It is apparent that the power under Article 72 entitles the President toexamine the record of evidence of the criminal case and to determine forhimself whether the case is one deserving the grant of the relief fallingwithin that power. We are of opinion that the President is entitled to gointo the merits of the case notwithstanding that it has been judiciallyconcluded by the consideration given to it by this Court.”In Epuru Sudhakar and another v. Government of Andhra Pradesh andothers[10] Pasayat J. speaking for the Court observed:-“16. The philosophy underlying the pardon power is that “every civilisedcountry recognises, and has therefore provided for, the pardoning power tobe exercised as an act of grace and humanity in proper cases. Without sucha power of clemency, to be exercised by some department or functionary of agovernment, a country would be most imperfect and deficient in itspolitical morality, and in that attribute of deity whose judgments arealways tempered with mercy.17. The rationale of the pardon power has been felicitously enunciated bythe celebrated Holmes, J. of the United States’ Supreme Court in Biddle v.Perovich [71 L Ed 1161: 274 US480(1927] in these words (L Ed at p. 1163):“Apardon in our days is not a private act of grace from an individualhappening to possess power. It is a part of the constitutional scheme. Whengranted, it is the determination of the ultimate authority that the publicwelfare will be better served by inflicting less than what the judgmentfixed.” In his concurring judgment Kapadia J. (as the learned Chief Justicethen was) stated:“65. Exercise of executive clemency is a matter of discretion and yetsubject to certain standards. It is not a matter of privilege. It is amatter of performance of official duty. It is vested in the President orthe Governor, as the case may be, not for the benefit of the convict only,but for the welfare of the people who may insist on the performance of theduty. This discretion, therefore, has to be exercised on publicconsiderations alone. The President and the Governor are the sole judges ofthe sufficiency of facts and of the appropriateness of granting the pardonsand reprieves. However, this power is an enumerated power in theConstitution and its limitations, if any, must be found in the Constitutionitself. Therefore, the principle of exclusive cognizance would not applywhen and if the decision impugned is in derogation of a constitutionalprovision. This is the basic working test to be applied while grantingpardons, reprieves, remissions and commutations.66. Granting of pardon is in no sense an overturning of a judgment ofconviction, but rather it is an executive action that mitigates or setsaside the punishment for a crime. It eliminates the effect of convictionwithout addressing the defendant’s guilt or innocence. The controllingfactor in determining whether the exercise of prerogative power is subjectto judicial review is not its source but its subject-matter. It can nolonger be said that prerogative power is ipso facto immune from judicialreview. An undue exercise of this power is to be deplored. Considerationsof religion, caste or political loyalty are irrelevant and fraught withdiscrimination. These are prohibited grounds. The Rule of Law is the basisfor evaluation of all decisions. The supreme quality of the Rule of Law isfairness and legal certainty. The principle of legality occupies a centralplan in the Rule of Law. Every prerogative has to be subject to the Rule ofLaw. That rule cannot be compromised on the grounds of politicalexpediency. To go by such considerations would be subversive of thefundamental principles of the Rule of Law and it would amount to setting adangerous precedent. The Rule of Law principle comprises a requirement of“Government according to law”. The ethos of “Government according to law”requires the prerogative to be exercised in a manner which is consistentwith the basic principle of fairness and certainty. Therefore, the power ofexecutive clemency is not only for the benefit of the convict, but whileexercising such a power the President or the Governor, as the case may be,has to keep in mind the effect of his decision on the family of thevictims, the society as a whole and the precedent it sets for the future.”16. The power conferred upon the President under Article 72 is underthree heads. The Governor on the other hand is conferred power under asole head i.e. in respect of sentence for an offence against any lawrelating to the matter to which the executive power of the State extends.Apart from similar such power in favour of the President in relation tomatter to which the executive power of the Union extends, the President isadditionally empowered on two counts. He is given exclusive power in allcases where punishment or sentence is by a Court Martial. He is alsoconferred power in all cases where the sentence is a sentence of death.Thus, in respect of cases of sentence of death, the power in favour of thePresident is regardless whether it is a matter to which the executive powerof the Union extends. Therefore a person convicted of any offence andsentenced to death sentence under any law relating to a matter to which theexecutive power of the State extends, can approach either the Governor byvirtue of Article 161 or the President in terms of Article 72(1)(c) orboth. To this limited extent there is definitely an overlap and powersstand conferred concurrently upon the President and the Governor.17. Articles 73 and 162 of the Constitution delineate the extent ofexecutive powers of the Union and the State respectively. Said Articles 73and 162 are as under:-“73. Extent of executive power of the Union-(1) Subject to the provisionsof this Constitution, the executive power of the Union shall extend-to the matters with respect to which Parliament has power to make laws; andto the exercise of such rights, authority and jurisdiction as areexercisable by the Government of India by virtue of any treaty oragreement:Provided that the executive power referred to in sub-clause (a) shall not,save as expressly provided in this Constitution or in any law made byParliament, extend in any State to matters with respect to which theLegislature of the State has also power to make laws.(2) until otherwise provided by Parliament, a State and any officer orauthority of a State may, notwithstanding anything in this article,continue to exercise in matters with respect to which Parliament has powerto make laws for that State such executive power or functions as the Stateor officer of authority thereof could exercise immediately before thecommencement of this Constitution.162. Extent of executive power of State.- Subject to the provisions of thisConstitution, the executive power of a State shall extend to the matterswith respect to which the Legislature of the State has power to make laws:Provided that in any matter with respect to which the Legislature of aState and Parliament have power to make laws, the executive power of theState shall be subject to, and limited by, the executive power expresslyconferred by this Constitution or by any law made by Parliament upon theUnion or authorities thereof. ”18. As regards clause (b) of Article 73(1) there is no dispute that insuch matters the executive power of the Union is absolute. The area ofdebate is with respect to clause (a) of Article 73(1) and the Proviso toArticle 73(1) and the inter-relation with Article 162. Clause (a) ofArticle 73(1) states that the executive power of the Union shall extend tothe matters with respect to which Parliament has power to make laws.Parliament has exclusive power in respect of legislative heads mentioned inList I of the 7th Schedule whereas in respect of the entries in theConcurrent List namely List III of the 7th Schedule, both Parliament andthe State have power to legislate in accordance with the scheme of theConstitution. The Proviso to Article 73(1) however states, subject to thesaving clause therein, that the executive power so referred to in sub-clause (a) shall not extend in any State to matters with respect to whichthe legislature of the State has also power to make laws. The expression“also” is significant. Under the Constitution the State has exclusive powerto make laws with respect to List II of the 7th Schedule and has alsoconcurrent power with respect to entries in Concurrent List namely List IIIof the Constitution. The Proviso thus deals with situations where thematter relates to or is with respect to subject where both Parliament andthe Legislature of the State are empowered to make laws under theConcurrent List. Subject to the saving clause mentioned in the Proviso, itis thus mandated that with respect to matters which are in the ConcurrentList namely where the Legislature of the State has also power to make laws,the executive power of the Union shall not extend. The saving clause in theProviso deals with two exceptions namely, where it is so otherwiseexpressly provided in the Constitution or in any law made by Parliament.In other words, only in those cases where it is so expressly provided inthe Constitution itself or in any law made by Parliament, the executivepower of the Union will be available. But for such express provisioneither in the Constitution or in the law made by Parliament which is inthe nature of an exception, the general principle which must govern is thatthe executive power under sub-clause (a) of Article 73 shall not extend inany State to matters with respect to which the legislature of the State hasalso power to make laws. In the absence of such express provision eitherin the Constitution or in the law made by Parliament, the normal rule isthat the executive power of the Union shall not extend in a State tomatters with respect to which the legislature of the State has also powerto make laws. 19. It will be instructive at this stage to see the debates on thepoint in the Constituent Assembly. The proceedings dated 30th December,1948 in the Constituent Assembly[11] show that while draft Article 60 whichcorresponds to present Article 73 was being discussed, an Hon’ble Membervoiced his concern in following words:“B. Pocker Sahib Bahadur (Madras : Muslim): Mr. Vice-President, this clauseas it stands is sure to convert the Federation into an entirely unitaryform of Government. This is a matter of very grave importance. Sir, we havebeen going on under the idea, and it is professed, that the character ofthe Constitution which we are framing is a federal one. I submit, Sir, ifthis article, which gives even executive powers with reference to thesubjects in the Concurrent List to the Central Government, is to be passedas it is, then there will be no justification at all in calling thisConstitution a federal one. It will be a misnomer to call it so. It will besimply a camouflage to call this Constitution a federal one with provisionslike this. It is said that it is necessary to give legislative powers tothe Centre with regard to certain subjects mentioned in the ConcurrentList, but it is quite another thing, Sir, to give even the executive powerswith reference to them to the Centre. These provisions will have the effectof practically leaving the provinces with absolutely nothing. Even in theConcurrent List there is a large number of subjects which ought not to havefound place in it. We shall have to deal with them when the time comes. Butthis clause gives even executive powers to the Centre with reference to thesubjects which are detailed in the Concurrent List.…….”After considerable debate on the point the clarification by Hon’ble MemberDr. B.R. Ambedkar is noteworthy. His view was as under:“The Honourable Dr. B.R. Ambedkar (Bombay : General): Mr. Vice-President,Sir, I am sorry that I cannot accept either of the two amendments whichhave been moved to this proviso, but I shall state to the House verybriefly the reasons why I am not in a position to accept these amendments.Before I do so I think I think it is desirable that the House should knowwhat exactly is the difference between the position as stated in theproviso and the two amendments which are moved to that proviso. Taking theproviso as it stands, it lays down two propositions. The first propositionis that generally the authority to execute laws which relate to what iscalled the Concurrent field, whether the law is passed by the CentralLegislature or whether it is passed by the Provincial or State Legislature,shall ordinarily apply to the Province or the State. That is the firstproposition which this proviso lays down. The second proposition which theproviso lays down is that if in any particular case Parliament thinks thatin passing a law which relates to the Concurrent field the execution oughtto be retained by the Central Government, Parliament shall have the powerto do so. Therefore, the position is this; that in all cases, ordinarily,the executive authority so far as the Concurrent List is concerned willrest with the units, the Provinces as well as the States. It is only inexceptional cases that the Centre may prescribe that the execution of aConcurrent law shall be with the centre.” The first proposition as stated by Dr. Ambedkar was that generallythe authority to execute laws which relate to subjects in the Concurrentfield, whether the law was passed by the Central Legislature or by theState Legislature, was ordinarily to be with the State. The secondproposition pertaining to the Proviso was quite eloquent in that if in anyparticular case Parliament thinks the execution ought to be retained bythe Centre, Parliament shall have the power to do so and that save andexcept such express provision, in all cases, the authority to executeinsofar as the Concurrent List is concerned shall rest with the States.20. In Rai Sahib Ram Jawaya Kapur and others v. State of Punjab[12]this Court while dealing with Article 162 of the Constitution, observed asunder:-“….Thus under this article the executive authority of the State isexclusive in respect to matters enumerated in List II of Seventh Schedule.The authority also extends to the Concurrent List except as provided in theConstitution itself or in any law passed by the Parliament. Similarly,Article 73 provides that the executive powers of the Union shall extend tomatters with respect to which the Parliament has power to make laws and tothe exercise of such rights, authority and jurisdiction as are exercisableby the Government of India by virtue of any treaty or any agreement. Theproviso engrafted on clause (1) further lays down that although with regardto the matters in the Concurrent List the executive authority shall beordinarily left to be State it would be open to the Parliament to providethat in exceptional cases the executive power of the Union shall extend tothese matters also. ”(Emphasis added)21. The same principle as regards the extent of Executive Power of theUnion and the State as stated in Articles 73 and 162 of the Constitutionfinds echo in Section 55A of the Indian Penal Code which definesappropriate Government as under:“55A. Definition of "appropriate Government". -- In Sections 54 and 55the expression "appropriate Government" means:-(a) in cases where the sentence is a sentence of death or is for an offenceagainst any law relating to a matter to which the executive power of theUnion extends, the Central Government; and(b) in cases where the sentence (whether of death or not) is for an offenceagainst any law relating to a matter to which the executive power of theState extends, the Government of the State within which the offender issentenced.”22. At this stage we may quote Sections 432 to 435 of the Code ofCriminal Procedure, 1973 (hereinafter referred to as Cr.P.C.) :-“432. Power to suspend or remit sentences. (1) When any person has beensentenced to punishment for an offence, the appropriate Government may, atany time, without Conditions or upon any conditions which the personsentenced accepts, suspend the execution of his sentence or remit the wholeor any part of the punishment to which he has been sentenced.(2) Whenever an application is made to the appropriate Government for thesuspension or remission of a sentence, the appropriate Government mayrequire the. presiding Judge of the Court before or by which the convictionwas had or confirmed, to state his opinion as to whether the applicationshould be granted or refused, together with his reasons for such opinionand also to forward with the statement of such opinion a certified copy ofthe record of the trial or of such record thereof as exists.(3) If any condition on which a sentence has been suspended or remitted is,In the opinion of the appropriate Government, not fulfilled, theappropriate Government may cancel the suspension or remission, andthereupon the person in whose favour the sentence has been suspended orremitted may, if at large, be arrested by any police officer, withoutwarrant and remanded to undergo the unexpired portion of the sentence.(4) The condition on which a sentence is suspended or remitted under thissection may be one to be fulfilled by the person in whose favour thesentence is suspended or remitted, or one independent of his will.(5) The appropriate Government may, by general rules or special orders givedirections as to the suspension of sentences and the conditions on whichpetitions should be presented and dealt with:Provided that in the case of any sentence (other than a sentence of fine)passed on a male person above the age of eighteen years, no such petitionby the person sentenced or by any other person on his behalf shall beentertained, unless the person sentenced is in jail, and-where such petition is made by the person sentenced, it is presentedthrough the officer in charge of the jail ; orwhere such petition is made by any other person, it contains a declarationthat the person sentenced is in jail.(6) The provisions of the above sub-sections shall also apply to any orderpassed by a Criminal Court under any section of this Code or of any otherlaw which restricts the liberty of any person or imposes any liability uponhim or his property.(7) In this section and in section 433, the expression "appropriateGovernment" means,-(a) in cases where the sentence is for an offence against, or the orderreferred to in sub-section (6) is passed under, any law relating to amatter to which the executive power of the Union extends, the CentralGovernment;(b) in other cases, the Government of the State within which the offenderis sentenced or the said order is passed.433. Power to commute sentence. The appropriate Government may, without theconsent of the person sentenced, commute-(a) a sentence of death, for any other punishment provided by the IndianPenal Code;(b) a sentence of imprisonment for life, for imprisonment for a term notexceeding fourteen years or for fine ;(c) a sentence of rigorous imprisonment, for simple imprisonment for anyterm to which that person might have been sentenced, or for fine ;(d) a sentence of simple imprisonment, for fine.433A. Restriction on powers of remission or Commutation in certain cases.Notwithstanding anything contained in section 432, where a sentence ofimprisonment for life is imposed on conviction of a person for an offencefor which death is one of the punishments provided by law, or where asentence of death imposed on a person has been commuted under section 433into one of imprisonment for life, such person shall not be released fromprison unless he had served at least fourteen years of imprisonment.434. Concurrent power of Central Government in case of death sentences. Thepowers conferred by sections 432 and 433 upon the State Government may, inthe case of sentences of death, also be exercised by the CentralGovernment.435. State Government to act after consultation with Central Government incertain cases. (1) The powers conferred by sections 432 and 433 upon theState Government to remit or commute a sentence, in any case where thesentence Is for an offence-which was investigated by the Delhi Special Police Establishmentconstituted under the Delhi Special Police Establishment Act, 1946 (25 of1946), or by any other agency empowered to make investigation into anoffence under any Central Act other than this Code, orwhich involved the misappropriation or destruction of, or damage to, anyproperty belonging to the Central Government, orwhich was committed by a person in the service of the Central Governmentwhile acting or purporting to act in the discharge of his official duty,shall not be exercised by the State Government except after consultationwith the Central Government.(2) No order of suspension, remission or commutation of sentences passedby the State Government in relation to a person, who has been convicted ofoffences, some of which relate to matters to which the executive power ofthe Union extends, and who has been sentenced to separate terms ofimprisonment which are to run concurrently, shall have effect unless anorder for the suspension, remission or commutation, as the case may be, ofsuch sentences has also been made by the Central Government in relation tothe offences committed by such person with regard to matters to which theexecutive power of the Union extends.”23. As regards definition of appropriate Government, Section 432(7) ofCr.P.C. adopts a slightly different approach. It defines CentralGovernment to be the appropriate Government in cases where the sentence isfor an offence against any law relating to a matter to which the executivepower of the Union extends. In that sense it goes by the same principle asin Article 73 of the Constitution and Section 55A of the IPC. Theresiduary area is then left for the State Government and it further statesthat in cases other than those where the Central Government is anappropriate Government, the Government of the State within which theoffender is sentenced shall be the appropriate Government. In other words,it carries the same essence and is not in any way different from theprinciple in Article 73 read with Article 162 on one hand and Section 55Aof the IPC on the other. The specification as to the State where theoffender is sentenced serves an entirely different purpose and helps infinding amongst more than one State Governments which is the appropriateGovernment as found in State of Madhya Pradesh v. Ratan Singh andothers[13], State of Madhya Pradesh v. Ajit Singh and others[14], HanumantDass v. Vinay Kumar and others[15]and Govt. of A.P. and others v. M.T.Khan[16]. According to this provision, even if an offence is committed inState A but if the trial takes place and the sentence is passed in State B,it is the latter State which shall be the appropriate Government.24. There is one more provision namely Section 435(2) of Cr. P.C. whichneeds to be considered at this stage. It is possible that in a given casethe accused may be convicted and sentenced for different offences, inrespect of some of which the executive power of the Union may extend and tothe rest the executive power of the State may extend. Since the executivepower either of the Union or the State is offence specific, both shall beappropriate Governments in respect of respective offence or offences towhich the executive power of the respective government extends. Forinstance, an offender may be sentenced for an offence punishable under anenactment relatable to subject under List I of the Constitution andadditionally under the Indian Penal Code. Such eventuality is taken careof by sub-section (2) of Section 435 and it is stipulated that even if theState Government in its capacity as an appropriate Government in relationto an offence to which the executive power of the State Government extends,were to order suspension, remission or commutation of sentence in respectof such offence, the order of the State Government shall not have effectunless an appropriate order of suspension, remission or commutation is alsopassed by the Central Government in relation to the offence(s) with respectto which executive power of the Union extends. Relevant to note that it isnot with respect to a specific offence that both the Central Government andState Government have concurrent power but if the offender is sentenced ontwo different counts, both could be the appropriate governments in respectof that offence to which the respective executive power extends.25. It was submitted on behalf of the petitioner that if theExecutive Power is co-extensive with the Legislative Power and the lawmaking power of the State must yield to the Legislative Power of the Unionin respect of a subject in the Concurrent List, reading of these twoprinciples would inevitably lead to the conclusion that the executive powerof the Union takes primacy over that of the State thereby making it i.e.the Central Government the appropriate Government under Section 432(7) ofCr. P.C. It was further submitted that it was Parliament which made lawcontained in Cr.P.C. in exercise of power relatable to Entry 1 and 2 ofList III and that the provisions in the IPC (existing law under Article13) and under the Cr. P.C., both relatable to the powers of Parliament,which provide for “appropriate Government” as prescribed in Section 55A ofthe IPC and 432(7) of the Cr.P.C. without any validity enacted conflictingor amending law by the State, would clearly show that it is the Union whichhas the primacy. In our considered view, that is not the correct way toapproach the issue. For the purposes of Article 73(1) it is not materialwhether there is Union law holding the field but what is crucial is thatsuch law made by Parliament must make an express provision or there must besuch express provision in the Constitution itself as regards executivepower of the Union, in the absence of which the general principle as statedabove must apply. If the submission that since the IPC and Cr. P.C. arerelatable to the powers of Parliament, it is the executive power of theUnion which must extend to aspects covered by these legislations is to beaccepted, the logical sequitor would be that for every offence under IPCthe appropriate Government shall be the Central Government. This is notonly against the express language of Article 73(1) but would completelyoverburden the Central Government.26. In the instant case as the order passed by this Court in State v.Nalini and others2, the respondents-convicts were acquitted of the offencespunishable under Section 3(3), 3(4) and 5 of the TADA. Their convictionunder various central laws like Explosive Substances Act, Passport Act,Foreigners Act and Wireless Telegraphy Act were all for lesser terms whichsentences, as on the date, stand undergone. Consequently, there is noreason or occasion to seek any remission in or commutation of sentences onthose counts. The only sentence remaining is one under Section 302 IPCwhich is life imprisonment. It was submitted by Mr. Rakesh Dwivedi,learned Senior Advocate that Section 302 IPC falls in Chapter XVI of theIPC relating to offences affecting the human body. In his submission,Sections 299 to 377 IPC involve matters directly related to “public order”which are covered by Entry 1 List II. It being in the exclusive executivedomain of the State Government, the State Government would be theappropriate Government. It was further submitted that assuming Sections302 read with Section 120B IPC are relatable to Entry 1 of List III beingpart of the Indian Penal Code itself, then the issue may arise whetherCentral Government or the State Government shall be the appropriateGovernment and resort has to be taken to provisions of Articles 73 and 162of the Constitution to resolve the issue.27. At this stage it would be useful to consider the decision of thisCourt in G.V. Ramanaiah v. The Superintendent of Central Jail Rajahmundryand others.[17]. In that case the appellant was convicted of offencespunishable under Section 489-A to 489-D of IPC and sentenced toimprisonment for 10 years. On a question whether the State Government wouldbe competent to remit the sentence of the appellant, this Court observed asunder:“9. The question is to be considered in the light of the above criterion.Thus considered, it will resolve itself into the issue: Are the provisionsof Sections 489-A to 489-D of the Penal Code, under which the petitionerwas convicted, a law relating to a matter to which the legislative power ofthe State or the Union extends?10. These four Sections were added to the Penal Code under the caption, “OfCurrency Notes and Bank Notes”, by Currency Notes Forgery Act, 1899, inorder to make better provisions for the protection of Currency and BankNotes against forgery. It is not disputed; as was done before the HighCourt in the application under Section 491(1), Criminal Procedure Code,that this bunch of Sections is a law by itself. “Currency, coinage andlegal tender” are matters, which are expressly included in Entry No. 36 ofthe Union List in the Seventh Schedule of the Constitution. Entry No. 93 ofthe Union List in the same Schedule specifically confers on the Parliamentthe power to legislate with regard to “offences against laws with respectto any of the matters in the Union List”. Read together, these entries putit beyond doubt that Currency Notes and Bank Notes, to which the offencesunder Sections 489-A to 489-D relate, are matters which are exclusivelywithin the legislative competence of the Union Legislature. It followstherefrom that the offences for which the petitioner has been convicted,are offences relating to a matter to which the executive power of the Unionextends, and the “appropriate Government” competent to remit the sentenceof the petitioner, would be the Central Government and not the StateGovernment.”This Court went on to observe that the Indian Penal Code is a compilationof penal laws, providing for offences relating to a variety of matters,referable to the various entries in the different lists of the 7th Scheduleto the Constitution and that many of the offences in the Penal Code relatedto matters which are specifically covered by entries in the Union list.Since the offences in question pertained to subject matter in the Unionlist, this Court concluded that the Central Government was the appropriateGovernment competent to remit the sentence of the appellant. The decisionin G.V. Ramanaiah thus clearly lays down that it is the offence, thesentence in respect of which is sought to be commuted or remitted, whichdetermines the question as to which Government is the appropriateGovernment.28. In Zameer Ahmed Latifur Rehman Sheikh v. State of Maharashtra andothers[18] challenge was raised to the competence of the State Legislatureto enact Maharashtra Control of Organised Crime Act, 1999. While rejectingthe challenge, it was observed by this Court as under:-“48. From the ratio of the judgments on the point of public order referredto by us earlier, it is clear that anything that affects public peace ortranquillity within the State or the Province would also affect publicorder and the State Legislature is empowered to enact laws aimed atcontaining or preventing acts which tend to or actually affect publicorder. Even if the said part of MCOCA incidentally encroaches upon a fieldunder Entry 1 of the Union List, the same cannot be held to be ultra viresin view of the doctrine of pith and substance as in essence the said partrelates to maintenance of public order which is essentially a State subjectand only incidentally trenches upon a matter falling under the Union List.Therefore, we are of the considered view that it is within the legislativecompetence of the State of Maharashtra to enact such a provision underEntries 1 and 2 of List II read with Entries 1, 2 and 12 of List III of theSeventh Schedule of the Constitution.” While considering the ambit of expression “public order” as appearingin Entry 1 List II of the 7th Schedule to the Constitution this Courtreferred to earlier decisions on the point and arrived at the aforesaidconclusion. Similarly in People’s Union for Civil Liberties and another v.Union of India[19] the validity of Prevention of Terrorism Act, 2002 and inKartar Singh v. State of Punjab[20] validity of TADA were questioned. Inboth the cases it was observed that the Entry “public order” in List IIempowers the State to enact the legislation relating to public order orsecurity insofar as it affects or relates to a particular State and thatthe term has to be confined to disorder of lesser gravity having impactwithin the boundaries of the State and that activity of more serious naturewhich threatens the security and integrity of the country as a whole wouldnot be within the field assigned to Entry 1 of List II. In both thesecases the validity of Central enactments were under challenge on the groundthat they in pith and substance were relatable to the subject under Entry 1of List II. In both the cases the challenges were negatived as thelegislations in question dealt with “terrorism” in contra-distinction tothe normal issues of “public order”.29. We are however concerned in the present case with offence underSection 302 IPC simplicitor. The respondents-convicts stand acquittedinsofar as offences under the TADA are concerned. We find force in thesubmissions of Mr. Rakesh Dwivedi, learned Senior Advocate that the offenceunder Section 302 IPC is directly related to “public order” under Entry 1of List II of the 7th Schedule to the Constitution and is in the exclusivedomain of the State Government. In our view the offence in question iswithin the exclusive domain of the State Government and it is the executivepower of the State which must extend to such offence. Even if it isaccepted for the sake of argument that the offence under Section 302 IPC isreferable to Entry 1 of List III, in accordance with the principles asdiscussed hereinabove, it is the executive power of the State Governmentalone which must extend, in the absence of any specific provision in theConstitution or in the law made by Parliament. Consequently, the StateGovernment is the appropriate Government in respect of the offence inquestion in the present matter. It may be relevant to note that right fromK.M. Nanavati v. State of Bombay (supra)8 in matters concerning offencesunder Section 302 IPC it is the Governor under Article 161 or the StateGovernment as appropriate Government under the Cr.P.C. who have beenexercising appropriate powers.30. In the light of the aforesaid discussion our answers to questions 3,4 and 5 as stated in paragraph 52.3, 52.4 and 52.5 are as under: Our answer to Question 52.3 in Para 52.3 is:- Question 52.3. Whether Section 432(7) of the Code clearly gives primacyto the executive power of the Union and excludes the executive power of theState where the power of the Union is co-extensive?Answer: The executive powers of the Union and the State normally operatein different fields. The fields are well demarcated. Keeping in view ourdiscussion in relation to Articles 73 and 162 of the Constitution, Section55A of the IPC and Section 432 (7) of Cr.P.C. it is only in respect ofsentence of death, even when the offence in question is referable to theexecutive power of the State, that both the Central and State Governmentshave concurrent power under Section 434 of Cr.P.C. If a convict issentenced under more than one offences, one or some relating to theexecutive power of the State Government and the other relating to theExecutive Power of the Union, Section 435(2) provides a clear answer.Except the matters referred herein above, Section 432 (7) of Cr. P.C. doesnot give primacy to the executive power of the Union. Our Answer to Question posed in Para 52.4. is:-Question 52.4. Whether the Union or the State has primacy over the subject-matter enlisted in List III of the 7th Schedule to the Constitution ofIndia for exercise of power of remission?Answer: In respect of matters in list III of the 7th Schedule to theConstitution, ordinarily the executive power of the State alone mustextend. To this general principle there are two exceptions as stated inProviso to Articles 73(1) of the Constitution. In the absence of anyexpress provision in the Constitution itself or in any law made byParliament, it is the executive power of the State which alone must extend.Our Answer to Question posed in Para 52.5. is:-Question 52.5. Whether there can be two appropriate Governments in a givencase under Section 432(7) of the Code?Answer: There can possibly be two appropriate Governments in a situationcontemplated under Section 435 (2) of Cr.P.C.. Additionally, in respect ofcases of death sentence, even when the offence is one to which theexecutive power of the State extends, Central Government can also beappropriate Government as stated in Section 434 of Cr.P.C.. Except thesetwo cases as dealt with in Section 434 and 435 (2) of Cr.P.C. there cannotbe two appropriate Governments.Re: Question No.6 as stated in para 52.6 of the Referral Order52.6. Whether suo motu exercise of power of remission under Section 432(1)is permissible in the scheme of the section, if yes, whether the procedureprescribed in sub-section (2) of the same section is mandatory or not?31. We now turn to the exercise of power of remission under Section432(1) of Cr.P.C.. Remissions are of two kinds. The first category is ofremissions under the relevant Jail Manual which depend upon the goodconduct or behavior of a convict while undergoing sentence awarded to him.These are generally referred to as ‘earned remissions’ and are notreferable to Section 432 of Cr.P.C. but have their genesis in the JailManual or any such Guidelines holding the field. In Shraddananda(2)6 thisaspect was explained thus:“80. From the Prisons Acts and the Rules it appears that for good conductand for doing certain duties, etc. inside the jail the prisoners are givensome days’ remission on a monthly, quarterly or annual basis. The days ofremission so earned by a prisoner are added to the period of his actualimprisonment (including the period undergone as an undertrial) to make upthe term of sentence awarded by the Court. This being the position, thefirst question that arises in mind is how remission can be applied toimprisonment for life. The way in which remission is allowed, it can onlyapply to a fixed term and life imprisonment, being for the rest of life, isby nature indeterminate.” The exercise of power in granting remission under Section 432 is donein a particular or specific case whereby the execution of the sentence issuspended or the whole or any part of the punishment itself is remitted.The effect of exercise of such power was succinctly put by this Court inMaru Ram etc. etc. v. Union of India & Another[21] in following words:-“……. In the first place, an order of remission does not wipe out theoffence it also does not wipe out the conviction. All that it does is tohave an effect on the execution of the sentence; though ordinarily aconvicted person would have to serve out the full sentence imposed by acourt, he need not do so with respect to that part of the sentence whichhas been ordered to be remitted. An order of remission thus does not inany way interfere with the order of the court; it affects only theexecution of the sentence passed by the court and frees the convictedperson from his liability to undergo the full term of imprisonmentinflicted by the court, though the order of conviction and sentence passedby the court still stands as it was. The power of grant remission isexecutive power and cannot have the effect of reducing the sentence passedby the trial court and substituting in its place the reduced sentenceadjudged by the appellate or revisional court……..…….. Though, therefore, the effect of an order of remission is to wipe outthat part of the sentence of imprisonment which has not been served out andthus in practice to reduce the sentence to the period already undergone, inlaw the order of remission merely means that the rest of the sentence neednot be undergone, leaving the order of conviction by the court and thesentence passed by it untouched.”32. The difference between earned remissions “for good behaviour” and theremission of sentence under Section 432 is clear. The first depends uponthe Jail Manual or the Policy in question and normally accrues andaccumulates to the credit of the prisoner without there being any specificorder by the appropriate Government in an individual case while the oneunder Section 432 requires specific assessment in an individual matter andis case specific. Could such exercise be undertaken under Section 432 bythe appropriate Government on its own, without there being any applicationby or on behalf of the prisoner? This issue has already been dealt with infollowing cases by this Court.A]. In Sangeet and another. v. State of Haryana[22], it was observed inparas 59, 61 and 62 as under:-“59. There does not seem to be any decision of this Court detailing theprocedure to be followed for the exercise of power under Section 432 CrPC.But it does appear to us that sub-section (2) to sub-section (5) of Section432 CrPC lay down the basic procedure, which is making an application tothe appropriate Government for the suspension or remission of a sentence,either by the convict or someone on his behalf. In fact, this is what wassuggested in Samjuben Gordhanbhai Koli v. State of Gujarat when it wasobserved that since remission can only be granted by the executiveauthorities, the appellant therein would be free to seek redress from theappropriate Government by making a representation in terms of Section 432CrPC.61. It appears to us that an exercise of power by the appropriateGovernment under sub-section (1) of Section 432 Cr.P.C. cannot be suo motufor the simple reason that this sub-section is only an enabling provision.The appropriate Government is enabled to “override” a judicially pronouncedsentence, subject to the fulfilment of certain conditions. Those conditionsare found either in the Jail Manual or in statutory rules. Sub-section (1)of Section 432 Cr.P.C. cannot be read to enable the appropriate Governmentto “further override” the judicial pronouncement over and above what ispermitted by the Jail Manual or the statutory rules. The process ofgranting “additional” remission under this section is set into motion in acase only through an application for remission by the convict or on hisbehalf. On such an application being made, the appropriate Government isrequired to approach the Presiding Judge of the court before or by whichthe conviction was made or confirmed to opine (with reasons) whether theapplication should be granted or refused. Thereafter, the appropriateGovernment may take a decision on the remission application and pass ordersgranting remission subject to some conditions, or refusing remission. Apartfrom anything else, this statutory procedure seems quite reasonableinasmuch as there is an application of mind to the issue of grant ofremission. It also eliminates “discretionary” or en masse release ofconvicts on “festive” occasions since each release requires a case-by-casebasis scrutiny.62. It must be remembered in this context that it was held in State ofHaryana v. Mohinder Singh that the power of remission cannot be exercisedarbitrarily. The decision to grant remission has to be well informed,reasonable and fair to all concerned. The statutory procedure laid down inSection 432 Cr.P.C does provide this check on the possible misuse of powerby the appropriate Government.”B] In Mohinder Singh v. State of Punjab[23] the observations in para27 were to the following effect:“27. In order to check all arbitrary remissions, the Code itself providesseveral conditions. Sub-sections (2) to (5) of Section 432 of the Code laydown basic procedure for making an application to the appropriateGovernment for suspension or remission of sentence either by the convict orsomeone on his behalf. We are of the view that exercise of power by theappropriate Government under sub-section (1) of Section 432 of the Codecannot be suo motu for the simple reason that this is only an enablingprovision and the same would be possible subject to fulfilment of certainconditions. Those conditions are mentioned either in the Jail Manual or instatutory rules. This Court in various decisions has held that the power ofremission cannot be exercised arbitrarily. In other words, the decision togrant remission has to be well informed, reasonable and fair to allconcerned. The statutory procedure laid down in Section 432 of the Codeitself provides this check on the possible misuse of power by theappropriate Government. As rightly observed by this Court in Sangeet v.State of Haryana, there is a misconception that a prisoner serving lifesentence has an indefeasible right to release on completion of either 14years’ or 20 years’ imprisonment. A convict undergoing life imprisonment isexpected to remain in custody till the end of his life, subject to anyremission granted by the appropriate Government under Section 432 of theCode which in turn is subject to the procedural checks mentioned in thesaid provision and further substantive check in Section 433-A of the Code.”C] In Yakub Abdul Razak Memon v. State of Maharashtra through CBI,Bombay[24], it was observed in paras 921 and 922 as under:“921. In order to check all arbitrary remissions, the Code itself providesseveral conditions. Sub-sections (2) to (5) of Section 432 of the Code laydown basic procedure for making an application to the appropriateGovernment for suspension or remission of sentence either by the convict orsomeone on his behalf. We are of the view that exercise of power by theappropriate Government under sub-section (1) of Section 432 of the Codecannot be automatic or claimed as a right for the simple reason, that thisis only an enabling provision and the same would be possible subject tofulfilment of certain conditions. Those conditions are mentioned either inthe Jail Manual or in statutory rules. This Court, in various decisions,has held that the power of remission cannot be exercised arbitrarily. Inother words, the decision to grant remission has to be well informed,reasonable and fair to all concerned. The statutory procedure laid down inSection 432 of the Code itself provides this check on the possible misuseof power by the appropriate Government.922. As rightly observed by this Court in Sangeet v. State of Haryana,there is misconception that a prisoner serving life sentence has anindefeasible right to release on completion of either 14 years or 20 years’imprisonment. A convict undergoing life imprisonment is expected to remainin custody till the end of his life, subject to any remission granted bythe appropriate Government under Section 432 of the Code, which in turn issubject to the procedural checks mentioned in the said provision and tofurther substantive check in Section 433-A of the Code.”33. Relying on the aforesaid decisions of this Court, it was submitted bythe learned Solicitor General that there cannot be suo motu exercise ofpower under Section 432 and that even when the power is to be exercised onan application made by or on behalf of the prisoner, opinion of thePresiding Judge of the Court before or by which the conviction wasconfirmed, must be sought. In the submission of Mr. Rakesh Dwivedi,learned Senior Advocate, power under Section 432(1) can be exercised suomotu and that Section 432(2) applies only when an application is made andnot where power is exercised suo motu.34. We find force in the submission of the learned Solicitor General. Byexercise of power of remission, the appropriate Government is enabled towipe out that part of the sentence which has not been served out and over-ride a judicially pronounced sentence. The decision to grant remissionmust, therefore, be well informed, reasonable and fair to all concerned. The procedure prescribed in Section 432(2) is designed to achieve thispurpose. The power exercisable under Section 432(1) is an enablingprovision and must be in accord with the procedure under Section 432(2).Thus, our answer to question posed in para 52.6 is:-Question 52.6. Whether suo motu exercise of power of remission underSection 432(1) is permissible in the scheme of the section, if yes, whetherthe procedure prescribed in sub-section (2) of the same section ismandatory or not?Answer: That suo motu exercise of power of remission under Section 432(1)is not permissible and exercise of power under Section 432(1) must be inaccordance with the procedure under Section 432(2) of Cr.P.C.Re: Question No. 7 as stated in Para 52.7 of the Referral Order:52.7. Whether the term “consultation” stipulated in Section 435(1) of theCode implies “concurrence”?35. Section 435(1) of Cr.P.C. sets out three categories under clauses(a), (b) and (c) thereof and states inter alia that the powers conferred bySections 432 and 433 of Cr.P.C. upon the State Government shall not beexercised except after consultation with the Central Government. Thelanguage used in this provision and the expressions “… shall not beexercised” and “except after consultation”, signify the mandatory nature ofthe provision. Consultation with the Central Government must, therefore,be mandatorily undertaken before the State Government in its capacity asappropriate Government intends to exercise powers under Sections 432 and433. This is an instance of express provision in a law made by Parliamentas referred to in proviso to Article 73(1) of the Constitution. Thequestion is whether such consultation stipulated in Section 435(1)implies concurrence on part of the Central Government as regards the actionproposed by the State Government. Relying on the decisions of this Court in L&T McNeil Ltd. v. Govt. of Tamil Nadu[25], State of U.P. & another v.Johri Mal[26], State of Uttar Pradesh and others v. Rakesh Kumar Keshariand another[27], Justice Chandrashekaraiah (Retd.) v. Janekere C. Krishnaand others[28] Mr. Rakesh Dwivedi, learned Senior Advocate submitted thatthe term consultation as appearing in Section 435 ought not to be equatedwith concurrence and that the action on part of the State of Tamil Nadu inseeking views of the Central Government as regards the proposed action didsatisfy the requirement under Section 435. On the other hand, the learnedSolicitor General relied upon Supreme Court Advocates-on-RecordAssociation and others v. Union of India[29] and State of Gujarat andanother v. Justice R.A. Mehta(Retd.) and others[30] to submit that theconsultation referred to in the provision must mean concurrence on part ofthe Central Government. In his submission without such concurrence, noaction could be undertaken.36. Speaking for the majority in Supreme Court Advocates-on-RecordAssociation (supra) J.S. Verma, J (as the learned Chief Justice then was)considered the effect of the phrase “consultation with the Chief Justiceof India ” appearing in Article 222 of the Constitution . Theobservations in paragraphs 438 to 441 are quoted hereunder:“438. The debate on primacy is intended to determine who amongst theconstitutional functionaries involved in the integrated process ofappointments is best equipped to discharge the greater burden attached tothe role of primacy, of making the proper choice; and this debate is not todetermine who between them is entitled to greater importance or is to takethe winner’s prize at the end of the debate. The task before us has to beperformed with this perception.439. The primacy of one constitutional functionary qua the others, whotogether participate in the performance of this function assumessignificance only when they cannot reach an agreed conclusion. The debateis academic when a decision is reached by agreement taking into account theopinion of everyone participating together in the process, as primarilyintended. The situation of a difference at the end, raising the question ofprimacy, is best avoided by each constitutional functionary rememberingthat all of them are participants in a joint venture, the aim of which isto find out and select the most suitable candidate for appointment, afterassessing the comparative merit of all those available. This exercise mustbe performed as a pious duty to discharge the constitutional obligationimposed collectively on the highest functionaries drawn from the executiveand the judiciary, in view of the great significance of these appointments.The common purpose to be achieved, points in the direction that emphasishas to be on the importance of the purpose and not on the comparativeimportance of the participants working together to achieve the purpose.Attention has to be focussed on the purpose, to enable better appreciationof the significance of the role of each participant, with the consciousnessthat each of them has some inherent limitation, and it is only collectivelythat they constitute the selector.440. The discharge of the assigned role by each functionary, viewed in thecontext of the obligation of each to achieve the common constitutionalpurpose in the joint venture will help to transcend the concept of primacybetween them. However, if there be any disagreement even then between themwhich cannot be ironed out by joint effort, the question of primacy wouldarise to avoid stalemate.441. For this reason, it must be seen who is best equipped and likely to bemore correct in his view for achieving the purpose and performing the tasksatisfactorily. In other words, primacy should be in him who qualifies tobe treated as the ‘expert’ in the field. Comparatively greater weight tohis opinion may then be attached.” The principle which emerges is that while construing the term‘consultation’ it must be seen who is the best equipped and likely to bemore correct in his view for achieving the purpose and performing thetasks satisfactorily and greater weight to his opinion may then beattached. While considering the phrase “after consultation of the Chief Justiceof the High Court”, this Court in State of Gujarat v. R.A. Mehta(supra)stated the principles thus:“32. Thus, in view of the above, the meaning of “consultation” varies fromcase to case, depending upon its fact situation and the context of thestatute as well as the object it seeks to achieve. Thus, no straitjacketformula can be laid down in this regard. Ordinarily, consultation means afree and fair discussion on a particular subject, revealing all materialthat the parties possess in relation to each other and then arriving at adecision. However, in a situation where one of the consultees has primacyof opinion under the statute, either specifically contained in a statutoryprovision, or by way of implication, consultation may mean concurrence. Thecourt must examine the fact situation in a given case to determine whetherthe process of consultation as required under the particular situation didin fact stand complete.” It is thus clear that the meaning of consultation varies from case tocase depending upon the fact situation and the context of the statute aswell as the object it seeks to achieve.37. In the light of the aforesaid principles, we now consider the objectthat sub-clauses (a), (b) and (c) of Section 435(1) of the Cr.P.C. seek toachieve. Clause (a) deals with cases which are investigated by the DelhiSpecial Police Establishment i.e. the Central Bureau of Investigation or byany other agency empowered to make investigation into an offence under anyCentral Act.The investigation by CBI in a matter may arise as a result of expressconsent or approval by the concerned State Government under Sections 5 and6 of the Delhi Special Police Establishment Act or as a result ofdirections by a Superior Court in exercise of its writ jurisdiction interms of the law laid down by this Court in State of West Bengal and othersv. Committee for Protection of Democratic Rights, West Bengal andothers[31]. For instance, in the present case the investigation into thecrime in question i.e. Crime No. 3 of 1991 was handed over to the CBI onthe next day itself. The entire investigation was done by the CBI whothereafter carried the prosecution right up to this Court.38. In a case where the investigation is thus handed over to the CBI,entire carriage of the proceedings including decisions as to who shall bethe public prosecutor, how the prosecution be conducted and whether appealbe filed or not are all taken by the CBI and at no stage the concernedState Government has any role to play. It has been laid down by thisCourt in Lalu Prasad Yadav and another v. State of Bihar and another[32]that in matters where investigation was handed over to the CBI, it is theCBI alone which is competent to decide whether appeal be filed or not andthe State Government cannot even challenge the order of acquittal on itsown. In such cases could the State Government then seek to exercise powersunder Sections 432 and 433 on its own?39. Further, in certain cases investigation is transferred to the CBIunder express orders of the Superior Court. There are number of suchexamples and the cases could be of trans-border ramifications such as stamppapers scam or chit fund scam where the offence may have been committed inmore than one States or it could be cases where the role and conduct of theconcerned State Government was such that in order to have transparency inthe entirety of the matter, the Superior Court deemed it proper to transferthe investigation to the CBI. It would not then be appropriate to allowthe same State Government to exercise power under Sections 432 and 433 onits own and in such matters, the opinion of the Central Government musthave a decisive status. In cases where the investigation was so conductedby the CBI or any such Central Investigating Agency, the Central Governmentwould be better equipped and likely to be more correct in its view.Considering the context of the provision, in our view comparatively greaterweight ought to be attached to the opinion of the Central Government whichthrough CBI or other Central Investigating Agency was in-charge of theinvestigation and had complete carriage of the proceedings.40. The other two clauses, namely, clauses (b) and (c) of Section 435deal with offences pertaining to destruction of any property belonging tothe Central Government or where the offence was committed by a person inthe service of the Central Government while acting or purporting to act inthe discharge of his official duty. Here again, it would be the CentralGovernment which would be better equipped and more correct in taking theappropriate view which could achieve the purpose satisfactorily. In suchcases, the question whether the prisoner ought to be given the benefitunder Section 432 or 433 must be that of the Central Government. Merelybecause the State Government happens to be the appropriate Government inrespect of such offences, if the prisoner were to be granted benefit underSection 432 or 433 by the State Government on its own, it would in factdefeat the very purpose.Our Answer to Question post in Para 52.7 is:-Question 52.7. Whether the term “consultation” stipulated in Section 435(1)of the Code implies “concurrence”?Answer: In the premises as aforesaid, in our view the expression“consultation” ought to be read as concurrence and primacy must be accordedto the opinion of the Central Government in matters covered under clauses(a), (b) and (c) of Section 435(1) of the Cr.P.C. Re: Question No.2 as stated in para 52.2 of the Referral Order52.2. Whether the “appropriate Government” is permitted to exercise thepower of remission under Sections 432/433 of the Code after the parallelpower has been exercised by the President under Article 72 or the Governorunder Article 161 or by this Court in its constitutional power underArticle 32 as in this case?41. As regards this question, the submissions of the learned SolicitorGeneral were two-fold. According to him the Governor while exercisingpower under Article 161 of the Constitution, having declined remission inor commutation of sentences awarded to the respondents-convicts, second orsubsequent exercise of executive power under Section 432/433 by the StateGovernment was not permissible and it would amount to an over-ruling ornullification of the exercise of constitutional power vested in theGovernor. In his submission, the statutory power under Section 432/433Cr.P.C. could not be exercised in a manner that would be in conflict withthe decision taken by the constitutional functionary under Article 161 ofthe Constitution. It was his further submission that Sections 432 and 433of Cr.P.C. only prescribe a procedure for remission, while the source ofsubstantive power of remission is in the Constitution. According to himSections 432 and 433, Cr.P.C. are purely procedural and in aid ofconstitutional power under Article 72 of 161. He further submitted thatas laid down in Maru Ram (supra), while exercising powers under Articles 72and 161, the President or the Governor act on the aid and advice of theCouncil of Ministers and thus the Council of Ministers, that is to say theexecutive having already considered the matter and rejected the petition, asubsequent exercise by the same executive is impermissible. On the otherhand, it was submitted by Mr. Rakesh Dwivedi, learned Senior Advocate thatthere was nothing in the statute which would bar or prohibit exercise ofpower on the second or subsequent occasion and in fact Section 433A ofCr.P.C. itself gives an indication that such exercise is permissible. Itwas further submitted that the power conferred upon an authority can beexercised successively from time to time as occasion requires.42. We would first deal with the submission of the learned SolicitorGeneral that the provisions of Section 432/433 Cr.P.C. are purelyprocedural and in aid of the constitutional power. This Court had anoccasion to deal with the issue, though in a slightly different context, inMaru Ram (supra). We may quote paragraphs 58 and 59 of the decision, whichare as under:“58. ………..What is urged is that by the introduction of Section 433-A,Section 432 is granted a permanent holiday for certain classes of lifersand Section 433(a) suffers eclipse. Since Sections 432 and 433(a) are astatutory expression and modus operandi of the constitutional power,Section 433-A is ineffective because it detracts from the operation ofSections 432 and 433(a) which are the legislative surrogates, as it were,of the pardon power under the Constitution. We are unconvinced by thesubmissions of counsel in this behalf.59. It is apparent that superficially viewed, the two powers, oneconstitutional and the other statutory, are coextensive. But two things maybe similar but not the same. That is precisely the difference. We cannotagree that the power which is the creature of the Code can be equated witha high prerogative vested by the Constitution in the highest functionariesof the Union and the States. The source is different, the substance isdifferent, the strength is different, although the stream may be flowingalong the same bed. We see the two powers as far from being identical, and,obviously, the constitutional power is “untouchable” and “unapproachable”and cannot suffer the vicissitudes of simple legislative processes.Therefore, Section 433-A cannot be invalidated as indirectly violative ofArticles 72 and 161. What the Code gives, it can take, and so, an embargoon Sections 432 and 433(a) is within the legislative power of Parliament.”43. The submission that Sections 432 and 433 are a statutory expressionand modus operandi of the constitutional power was not accepted in Maru Ram(supra). In fact this Court went on to observe that though these twopowers, one constitutional and the other statutory, are co-extensive, thesource is different, the substance is different and the strength isdifferent. This Court saw the two powers as far from being identical. Theconclusion in para 72(4) in Maru Ram (supra) was as under:“72. (4) We hold that Section 432 and Section 433 are not a manifestationof Articles 72 and 161 of the Constitution but a separate, though similarpower, and Section 433-A, by nullifying wholly or partially these priorprovisions does not violate or detract from the full operation of theconstitutional power to pardon, commute and the like.”It is thus well settled that though similar, the powers under Section432/433 Cr.P.C. on one hand and those under Article 72 and 161 on theother, are distinct and different. Though they flow along the same bed andin same direction, the source and substance is different. We thereforereject the submission of the learned Solicitor General.44. Section 433A of Cr.P.C. inter alia states, “…… where a sentence ofdeath imposed on a person has been commuted under Section 433 into one ofimprisonment for life”, such person shall not be released from prisonunless he had served at least 14 years of imprisonment. It thuscontemplates an earlier exercise of power of commuting the sentence underSection 433 Cr.P.C. It may be relevant to note that under Section 433 asentence of death can be commuted for any other punishment includingimprisonment for life. A prisoner having thus been granted a benefit underSection 433 Cr.P.C. can certainly be granted further benefit of remittingthe remainder part of the life sentence, subject of course to statutoryminimum period of 14 years of actual imprisonment. We therefore accept thesubmission of Mr. Rakesh Dwivedi, learned Senior Advocate that there isnothing in the statute which either expressly or impliedly bars second orsubsequent exercise of power. In fact Section 433A contemplates suchsubsequent exercise of power. At this stage, the observations in G.Krishta Goud and J. Bhoomaiah v. State of Andhra Pradesh and others[33] inthe context of constitutional power of clemency are relevant:“10. …………… The rejection of one clemency petition does not exhaust thepower of the President or the Governor.”This principle was re-iterated in para 7 of the decision in Krishnan andothers v. State of Haryana and others[34] as follows:- “In fact, Articles 72 and 161 of the Constitution provide for residuarysovereign power, thus, there could be nothing to debar the authoritiesconcerned to exercise such power even after rejection of one clemencypetition and even in the changed circumstances.”45. In State of Haryana and others v. Jagdish[35]it was observed by thisCourt as under:“46. At the time of considering the case of premature release of a lifeconvict, the authorities may require to consider his case mainly takinginto consideration whether the offence was an individual act of crimewithout affecting the society at large; whether there was any chance offuture recurrence of committing a crime; whether the convict had lost hispotentiality in committing the crime; whether there was any fruitfulpurpose of confining the convict any more; the socio-economic condition ofthe convict’s family and other similar circumstances.” In Kehar Singh v. Union of India (supra) it was observed, “…….. thepower under Article 72 is of the widest amplitude, can contemplate myriadkinds and categories of cases with facts and situations varying from caseto case, in which the merits and reasons of States may be profoundlyassisted by prevailing occasion and passing of time”. Having regard to itswide amplitude and the status of the functions to be discharged thereunder,it was found unnecessary to spell out any specific guidelines for exerciseof such power. The observations made in the context of power under Article72 will also be relevant as regards exercise under Section 432/433 Cr.P.C. In State (Govt. of NCT of Delhi) v. Prem Ram[36] it was observedthus:“14. The powers conferred upon the appropriate Government under Section 433have to be exercised reasonably and rationally keeping in view the reasonsgermane and relevant for the purpose of law, mitigating circumstancesand/or commiserative facts necessitating the commutation and factors likeinterest of the society and public interest.”46. We see no hindrance or prohibition in second or subsequent exerciseof power under Section 432/433 Cr.P.C. As stated above, such exercise isin fact contemplated under Section 433A. An exercise of such power may berequired and called for depending upon exigencies and fact situation. Aperson may be on the death bed and as such the appropriate Government maydeem fit to grant remission so that he may breathe his last in the comfortand company of his relations. Situations could be different. It would bedifficult to put the matter in any straight jacket or make it subject toany guidelines, as was found in Kehar Singh. The aspects whether “theconvict had lost his potentiality in committing the crime and whether therewas any fruitful purpose of confining the convict any more” as stated inState of Haryana v. Jagdish (supra) could possibly yield differentassessment after certain period and can never be static. Every case willdepend on its individual facts and circumstances. In any case, if therepeated exercise is not for any genuine or bona fide reasons, the mattercan be corrected by way of judicial review. Further, in the light of ourdecision as aforesaid, in any case an approach would be required to be madeunder Section 432(2) Cr.P.C. to the concerned court which would also resultin having an adequate check.47. In the instant case, A-1 Nalini and other convicts A-2, A-3 and A-18who were awarded death sentence had initially preferred mercy petitionunder Article 161 of the Constitution. The petition preferred by A-1Nalini was allowed, while those of other three were rejected. Those threeconvicts then preferred mercy petition under Article 72 of the Constitutionwhich was rejected after considerable delay. On account of such delay indisposal of the matters, this Court commuted the sentence of those threeconvicts to that of life imprisonment. The other convicts namely A-9, A-10and A-16 had not preferred any petition under Article 161 against theirlife imprisonment. Thus the Governor while exercising power under Article161 on the earlier occasion had considered the cases of only three of theconvicts and that too when they were facing death sentence. The cases ofother three were not even before the Governor. In the changed scenarionamely the death sentence having been commuted to that of the imprisonmentfor life under the orders of this Court, the approach would not be on thesame set of circumstances. Each of the convicts having undergone about 23years of actual imprisonment, there is definitely change in circumstances.An earlier exercise of power under Article 72 or 161 may certainly havetaken into account the gravity of the offence, the effect of such offenceon the society in general and the victims in particular, the age, capacityand conduct of the offenders and the possibility of any retribution. Suchassessment would naturally have been as on the day it was made. It ispossible that with the passage of time the very same assessment could be ofa different nature. It will therefore be incorrect and unjust to rule outeven an assessment on the subsequent occasion.48. While commuting the death sentence to that of imprisonment for life,on account of delay in disposal of the mercy petition, this Court in itsjurisdiction under Article 32 concentrates purely on the factum of delay indisposal of such mercy petition as laid down by this Court in ShatrughanChauhan and another v. Union of India and others[37]. The merits of thematter are not required and cannot be gone into. The commutation by thisCourt in exercise of power under Article 32 is therefore completely of adifferent nature. On the other hand, the consideration under Section432/433 is of a different dimension altogether.Our Answer to Question posed in Para 52.2 is :-Question 52.2. Whether the “appropriate Government” is permitted toexercise the power of remission under Sections 432/433 of the Code afterthe parallel power has been exercised by the President under Article 72 orthe Governor under Article 161 or by this Court in its constitutional powerunder Article 32 as in this case? Answer: In the circumstances, in our view it is permissible to theappropriate Government to exercise the power of remission under Section432/433 Cr.P.C. even after the exercise of power by the President underArticle 72 or the Governor under Article 161 or by this Court in itsconstitutional power under Article 32.Re: Question No.1 as stated in para 52.1 of the Referral Order49. Question no. 1 as formulated in the Referral Order comprises of twosub-questions, as set out hereunder:Whether imprisonment for life in terms of Section 53 read with Section 45of the Indian Penal Code meant imprisonment for rest of the life of theprisoner or a convict undergoing life imprisonment has a right to claimremission? AndWhether as per the principles enunciated in paragraphs 91 to 93 of SwamyShraddananda(2)6, a special category of sentence may be made for the veryfew cases where the death penalty might be substituted by the punishmentfor imprisonment for life or imprisonment for a term in excess of fourteenyears and to put that category beyond application of remission?Re: Sub-question (a) of question No.1 in Para 52.1Whether imprisonment for life in terms of Section 53 read with Section 45of the Indian Penal Code meant imprisonment for rest of the life of theprisoner or a convict undergoing life imprisonment has a right to claimremission?50. In Gopal Vinayak Godse v. The State of Maharashtra and others[38],the petitioner was convicted on 10.02.1949 and given sentences includingone for transportation for life. According to him, he had earnedremissions to the tune of 2893 days upto 30.09.1960 and if such earnedremissions were added, his actual term of imprisonment would exceed 20years and therefore he prayed that he be set at liberty forthwith.Repelling these submissions, it was observed by the Constitution Bench ofthis Court that in order to get the benefit of earned remissions thesentence of imprisonment must be for a definite and ascertainable period,from and out of which the earned remissions could be deducted. However,transportation for life or life imprisonment meant that the prisoner wasbound in law to serve the entire life term i.e. the remainder of his lifein prison. Viewed thus, unless and until his sentence was commuted orremitted by an appropriate authority under the relevant provisions, theprisoner could not claim any benefit. It was observed: “…….. As the sentence of transportation for life or its prisonequivalent, the life imprisonment, is one of indefinite duration, theremissions so earned do not in practice help such a convict as it is notpossible to predicate the time of his death.”51. In Maru Ram (supra) while considering the effect of Section 433A ofCr.P.C. this Court summed up the issue as under:“…Ordinarily, where a sentence is for a definite term, the calculus ofremissions may benefit the prisoner to instant-release at that point wherethe subtraction results in zero. Here, we are concerned with lifeimprisonment and so we come upon another concept bearing on the nature ofthe sentence which has been highlighted in Godse's case Where the sentenceis indeterminate and of uncertain duration, the result of subtraction froman uncertain quantity is still an uncertain quantity and release of theprisoner cannot follow except on some fiction of quantification of asentence of uncertain duration. Godse was sentenced to imprisonment forlife. He had earned considerable remissions which would have rendered himeligible for release had life sentence been equated with 20 years ofimprisonment a la Section 55 I. P. C. On the basis of a rule which did makethat equation, Godse sought his release through a writ petition underArticle 52 of the Constitution. He was rebuffed by this Court. AConstitution Bench, speaking through Subba Rao, J., took the view that asentence of imprisonment for life was nothing less and nothing else than animprisonment which lasted till the last breath. Since death was uncertain,deduction by way of remission did not yield any tangible date for releaseand so the prayer of Godse was refused. The nature of a life sentence isincarceration until death, judicial sentence of imprisonment for lifecannot be in jeopardy merely because of long accumulation of remissions.Release would follow only upon an order under Section 401 of the CriminalProcedure Code, 1898 (corresponding to Section 432 of the 1973 Code) by theappropriate Government or on a clemency order in exercise of power underArticle 72 or 161 of the Constitution. Godse (supra) is authority for theproposition that a sentence of imprisonment for life is one of"imprisonment for the whole of the remaining period of the convictedperson's natural life" Conclusion No.6 in Maru Ram was to the following effect:“We follow Godse's case (supra) to hold that imprisonment for life lastsuntil the last breath, and whatever the length of remissions earned, theprisoner can claim release only if the remaining sentence is remitted byGovernment.”52. Section 53 of the IPC envisages different kinds of punishments whileSection 45 of the IPC defines the word ‘life’ as the life of a human beingunless the contrary appears from the context. The life of a human being istill he is alive that is to say till his last breath, which by very natureis one of indefinite duration. In the light of the law laid down in Godseand Maru Ram, which law has consistently been followed the sentence of lifeimprisonment as contemplated under Section 53 read with Section 45 of theIPC means imprisonment for rest of the life or the remainder of life ofthe convict. The terminal point of the sentence is the last breath of theconvict and unless the appropriate Government commutes the punishment orremits the sentence such terminal point would not change at all. The lifeimprisonment thus means imprisonment for rest of the life of the prisoner.53. In paras 27 and 38 of the decision in State of Haryana v. MahenderSingh and others[39] , this Court observed:-“27. It is true that no convict has a fundamental right of remission orshortening of sentences. It is also true that the State in exercise of itsexecutive power of remission must consider each individual case keeping inview the relevant factors. The power of the State to issue generalinstructions, so that no discrimination is made, is also permissible inlaw.38. A right to be considered for remission, keeping in view theconstitutional safeguards of a convict under Articles 20 and 21 of theConstitution of India, must be held to be a legal one. Such a legal rightemanates from not only the Prisons Act but also from the Rules framedthereunder. Although no convict can be said to have any constitutionalright for obtaining remission in his sentence, he in view of the policydecision itself must be held to have a right to be considered therefor.Whether by reason of a statutory rule or otherwise if a policy decision hasbeen laid down, the persons who come within the purview thereof areentitled to be treated equally. (State of Mysore v. H. Srinivasmurthy)”54. The convict undergoing the life imprisonment can always apply to theconcerned authority for obtaining remission either under Articles 72 or 161of the Constitution or under Section 432 Cr.P.C. and the authority would beobliged to consider the same reasonably. This was settled in the case ofGodse which view has since then been followed consistently in State ofHaryana v. Mahender Singh (supra), State of Haryana Vs. Jagdish (supra),Sangeet Vs. State of Haryana (supra) and Laxman Naskar Vs. Union of Indiaand others[40] . The right to apply and invoke the powers under theseprovisions does not mean that he can claim such benefit as a matter ofright based on any arithmetical calculation as ruled in Godse. All that hecan claim is a right that his case be considered. The decision whetherremissions be granted or not is entirely left to the discretion of theconcerned authorities, which discretion ought to be exercised in a mannerknown to law. The convict only has right to apply to competent authorityand have his case considered in a fair and reasonable manner.Our Answer to sub question (a) of Question in Para 52.1 is:Whether imprisonment for life in terms of Section 53 read with Section 45of the Indian Penal Code meant imprisonment for rest of the life of theprisoner or a convict undergoing life imprisonment has a right to claimremission?Answer: The sentence of life imprisonment means imprisonment for the restof life or the remainder of life of the convict. Such convict can alwaysapply for obtaining remission either under Articles 72 of 161 of theConstitution or under Section 432 Cr. P.C. and the authority would beobliged to consider the same reasonably. Re: sub-question (b) of Question No.1 in Para 52.1(b) Whether as per the principles enunciated in paragraphs 91 to 93 ofSwamy Shraddananda(2)6, a special category of sentence may be made for thevery few cases where the death penalty might be substituted by thepunishment for imprisonment for life or imprisonment for a term in excessof fourteen years and to put that category beyond application of remission?55. In Swamy Shraddananda(1)4 the appellant was convicted for theoffence of murder and given death sentence, which conviction and sentencewas under appeal in this Court. A Bench of two learned Judges of thisCourt affirmed the conviction of the appellant but differed on the questionof sentence to be imposed. Sinha J. was of the view that instead of deathsentence, life imprisonment would serve the ends of justice. He however,directed that the appellant would not be released from the prison till theend of his life. Katju J. was of the view that the appellant deserveddeath sentence. The matter therefore came up before a Bench of threelearned Judges. While dealing with the question of sentence to be imposed,this Court was hesitant in endorsing the death penalty awarded by the trialcourt and confirmed by the High Court. Paragraph nos. 55 and 56 of thejudgment in Swamy Shraddananda(2)6 may be quoted here:“55. We must not be understood to mean that the crime committed by theappellant was not very grave or the motive behind the crime was not highlydepraved. Nevertheless, in view of the above discussion we feel hesitant inendorsing the death penalty awarded to him by the trial court and confirmedby the High Court. The absolute irrevocability of the death penalty rendersit completely incompatible to the slightest hesitation on the part of theCourt. The hangman’s noose is thus taken off the appellant’s neck.56. But this leads to a more important question about the punishmentcommensurate to the appellant’s crime. The sentence of imprisonment for aterm of 14 years, that goes under the euphemism of life imprisonment isequally, if not more, unacceptable. As a matter of fact, Mr Hegde informedus that the appellant was taken in custody on 28-3-1994 and submitted thatby virtue of the provisions relating to remission, the sentence of lifeimprisonment, without any qualification or further direction would, in alllikelihood, lead to his release from jail in the first quarter of 2009since he has already completed more than 14 years of incarceration. Thiseventuality is simply not acceptable to this Court. What then is theanswer? The answer lies in breaking this standardisation that, in practice,renders the sentence of life imprisonment equal to imprisonment for aperiod of no more than 14 years; in making it clear that the sentence oflife imprisonment when awarded as a substitute for death penalty would becarried out strictly as directed by the Court. This Court, therefore, mustlay down a good and sound legal basis for putting the punishment ofimprisonment for life, awarded as substitute for death penalty, beyond anyremission and to be carried out as directed by the Court so that it may befollowed, in appropriate cases as a uniform policy not only by this Courtbut also by the High Courts, being the superior courts in their respectiveStates. A suggestion to this effect was made by this Court nearly thirtyyears ago in Dalbir Singh v. State of Punjab. In para 14 of the judgmentthis Court held and observed as follows: (SCC p. 753)“14. The sentences of death in the present appeal are liable to be reducedto life imprisonment. We may add a footnote to the ruling in RajendraPrasad case. Taking the cue from the English legislation on abolition, wemay suggest that life imprisonment which strictly means imprisonment forthe whole of the men’s life but in practice amounts to incarceration for aperiod between 10 and 14 years may, at the option of the convicting court,be subject to the condition that the sentence of imprisonment shall last aslong as life lasts, where there are exceptional indications of murderousrecidivism and the community cannot run the risk of the convict being atlarge. This takes care of judicial apprehensions that unless physicallyliquidated the culprit may at some remote time repeat murder.We think that it is time that the course suggested in Dalbir Singh shouldreceive a formal recognition by the Court.”56. The discussion in aforesaid paragraph 56 shows the concern thatweighed with this Court was the standardization rendering the sentence oflife imprisonment in practice as equal to imprisonment for a period of nomore than fourteen years. Relying on Dalbir Singh & others v. State ofPunjab[41] which in turn had considered Rajendra Prasad v. State ofU.P.[42], it was observed that the Court must in appropriate cases put thepunishment of life imprisonment awarded as a substitute for death penalty,beyond any remission and direct it to be carried out as directed by theCourt. Paragraphs 91 to 93 of the decision in Shraddananda(2) which givesrise to sub-question (b) of the first question in the Referral Order wereas under:“91. The legal position as enunciated in Pandit Kishori Lal, Gopal VinayakGodse, Maru Ram, Ratan Singh and Shri Bhagwan and the unsound way in whichremission is actually allowed in cases of life imprisonment make out a verystrong case to make a special category for the very few cases where thedeath penalty might be substituted by the punishment of imprisonment forlife or imprisonment for a term in excess of fourteen years and to put thatcategory beyond the application of remission.92. The matter may be looked at from a slightly different angle. The issueof sentencing has two aspects. A sentence may be excessive and unduly harshor it may be highly disproportionately inadequate. When an appellant comesto this Court carrying a death sentence awarded by the trial court andconfirmed by the High Court, this Court may find, as in the present appeal,that the case just falls short of the rarest of the rare category and mayfeel somewhat reluctant in endorsing the death sentence. But at the sametime, having regard to the nature of the crime, the Court may strongly feelthat a sentence of life imprisonment subject to remission normally worksout to a term of 14 years would be grossly disproportionate and inadequate.What then should the Court do? If the Court’s option is limited only to twopunishments, one a sentence of imprisonment, for all intents and purposes,of not more than 14 years and the other death, the Court may feel temptedand find itself nudged into endorsing the death penalty. Such a coursewould indeed be disastrous. A far more just, reasonable and proper coursewould be to expand the options and to take over what, as a matter of fact,lawfully belongs to the Court i.e. the vast hiatus between 14 years’imprisonment and death. It needs to be emphasised that the Court would takerecourse to the expanded option primarily because in the facts of the case,the sentence of 14 years’ imprisonment would amount to no punishment atall.93. Further, the formalisation of a special category of sentence, thoughfor an extremely few number of cases, shall have the great advantage ofhaving the death penalty on the statute book but to actually use it aslittle as possible, really in the rarest of rare cases. This would only bea reassertion of the Constitution Bench decision in Bachan Singh besidesbeing in accord with the modern trends in penology.” 57. Finally, in paragraph 95 of its Judgment in Shraddananda(2)6 thisCourt substituted the death sentence given to the appellant to that ofimprisonment for life and directed that he would not be released from theprison till the rest of his life. While doing so, this Court made it clearthat it was not dealing with powers of the President and the Governor underArticle 72 and 161 of the Constitution but only with provisions ofcommutation, remission etc. as contained in the Cr.P.C. and the PrisonActs, as would be evident from paragraph 77 of the judgment which was tothe following effect:-“77. This takes us to the issue of computation and remission, etc. ofsentences. The provisions in regard to computation, remission, suspension,etc. are to be found both in the Constitution and in the statutes. Articles72 and 161 of the Constitution deal with the powers of the President andthe Governors of the States respectively to grant pardons, reprieves,respites or remissions of punishment or to suspend, remit or commute thesentence of any person convicted for any offence. Here it needs to be madeabsolutely clear that this judgment is not concerned at all with theconstitutional provisions that are in the nature of the State’s sovereignpower. What is said hereinafter relates only to provisions of commutation,remission, etc. as contained in the Code of Criminal Procedure and thePrisons Acts and the rules framed by the different States.”58. The decision in Shraddananda(2)6 is premised on the following: (a) The life imprisonment, though in theory is till the rest of thelife or the remainder of life of the prisoner, in practice it is equal toimprisonment for a period of no more than 14 years. (b) Though in a given case, in the assessment of the Court the casemay fall short of the “rarest of rare” category to justify award of deathsentence, it may strongly feel that a sentence of life imprisonment whichnormally works out to a term of fourteen years may be grosslydisproportionate and inadequate. (c) If the options are limited only to these two punishments theCourt may feel tempted and find itself nudged into endorsing the deathpenalty, which course would be disastrous. (d) The Court may therefore take recourse to the expanded optionnamely the hiatus between imprisonment for fourteen years and the deathsentence, if the facts of the case justify. (e) The unsound way in which remissions are granted in cases oflife imprisonment makes out a strong case to make a special category forthe very few cases where the death penalty is substituted for imprisonmentof life. (f) While awarding life imprisonment the Court may specify that theprisoner must actually undergo minimum sentence of period in excess offourteen years or that he shall not be released till the rest of his lifeand/or put such sentence beyond the application of remission. The view so taken in Shraddananda(2)6 has been followed in someof the later Bench decisions of this Court. It is the correctness of thisview and more particularly whether it is within the powers of the Court toput the sentence of life imprisonment so awarded beyond application ofremissions, which is presently in question.59. We must at the outset state that while commuting the death sentenceto that of imprisonment for life, this Court in V. Sreedhar v. Union ofIndia (supra)5 had not put any fetters or restrictions on the power ofcommutation and/or remission. In fact paragraph 32 of the decisionexpressly mentions that the sentence so awarded is subject to any remissiongranted by the Appropriate Government under Section 432 of Cr.P.C.Strictly speaking, sub-question (b) of the first question does not arisefor consideration insofar as the present writ petition is concerned andthat precisely was the submission of Mr. Rakesh Dwivedi, learned SeniorAdvocate. However since the question has been referred for our decision weproceed to deal with said sub-question (b) of question No.1. Further adoubt has been expressed in Sangeet v. State of Haryana (supra) regardingcorrectness of the decision in Shraddananda(2)6 in following words:“55. A reading of some recent decisions delivered by this Court seems tosuggest that the remission power of the appropriate Government haseffectively been nullified by awarding sentences of 20 years, 25 years andin some cases without any remission. Is this permissible? Can this Court(or any court for that matter) restrain the appropriate Government fromgranting remission of a sentence to a convict? What this Court has done inSwamy Shraddananda and several other cases, by giving a sentence in acapital offence of 20 years’ or 30 years’ imprisonment without remission,is to effectively injunct the appropriate Government from exercising itspower of remission for the specified period. In our opinion, this issueneeds further and greater discussion, but as at present advised, we are ofthe opinion that this is not permissible. The appropriate Government cannotbe told that it is prohibited from granting remission of a sentence.Similarly, a convict cannot be told that he cannot apply for a remission inhis sentence, whatever be the reason.” We therefore deal with the question.60. The decision of this Court in Maru Ram (Supra) refers to thebackground which preceded the introduction of Section 433 A in Cr. P.C. TheJoint Committee which went into the Indian Penal Code (Amendment) Bill hadsuggested that a long enough minimum sentence should be suffered by bothclasses of lifers namely, those guilty of offence where death sentence wasone of the alternatives and where the death sentence was commuted toimprisonment for life. Paragraph 5 of the decision in Maru Ram sets out theobjects and reasons, relevant notes on clauses and the recommendations andwas to the following effect:“5. The Objects and Reasons throw light on the “why” of this new provision:“The Code of Criminal Procedure, 1973 came into force on the 1st day ofApril, 1974. The working of the new Code has been carefully watched and inthe light of the experience, it has been found necessary to make a fewchanges for removing certain difficulties and doubts. The notes on clausesexplain in brief the reasons for the amendments.”The notes on clauses give the further explanation:-“Clause 33.—Section 432 contains provision relating to powers of theappropriate Government to suspend or remit sentences. The Joint Committeeon the Indian Penal Code (Amendment) Bill, 1972, had suggested theinsertion of a proviso to Section 57 of the Indian Penal Code to the effectthat a person who has been sentenced to death and whose death sentence hasbeen commuted into that of life imprisonment and persons who have beensentenced to life imprisonment for a capital offence should undergo actualimprisonment of 14 years in jail. Since this particular matter relates moreappropriately to the Criminal Procedure Code, a new section is beinginserted to cover the proviso inserted by the Joint Committee.”This takes us to the Joint Committee’s recommendation on Section 57 of thePenal Code that being the inspiration for clause 33. For the sake ofcompleteness, we may quote that recommendation:“Section 57 of the Code as proposed to be amended had provided that incalculating fractions of terms of punishment, imprisonment for life shouldbe reckoned as equivalent to rigorous imprisonment for twenty years. Inthis connection attention of the Committee was brought to the aspect thatsometimes due to grant of remission even murderers sentenced or commuted tolife imprisonment were released at the end of 5 to 6 years. The Committeefeels that such a convict should not be released unless he has served atleast fourteen years of imprisonment.” Thus, as against the then prevalent practice or experience wheremurderers sentenced or commuted to life imprisonment, were being releasedat the end of 5-6 years, period of 14 years of actual imprisonment wasconsidered sufficient.Shraddananda(2)6 referred to earlier decision of this Court in Dalbir Singhand others v. State of Punjab (supra). In that decision, taking cue fromEnglish Legislation on abolition of death penalty, a suggestion was made infollowing words:-“14. The sentences of death in the present appeal are liable to be reducedto life imprisonment. We may add a footnote to the ruling in RajendraPrasad case. Taking the cue from the English legislation on abolition, wemay suggest that life imprisonment which strictly means imprisonment forthe whole of the man’s life, but in practice amounts to incarceration for aperiod between 10 and 14 years may, at the option of the convicting court,be subject to the condition that the sentence of imprisonment shall last aslong as life lasts where there are exceptional indications of murderousrecidivism and the community cannot run the risk of the convict being atlarge. This takes care of judicial apprehensions that unless physicallyliquidated the culprit may at some remote time repeat murder.”62. Committee of Reforms on Criminal Justice System under theChairmanship of Dr. Justice Malimath in its report submitted in the year2003 recommended suitable amendments to introduce a punishment higher thanlife imprisonment and lesser than death penalty, similar to that whichexists in USA namely “Imprisonment for life without commutation orremission”. The relevant paragraphs of Malimath Committee Report namelyparagraphs 14.7.1 and 14.7.2 were as under:-“ALTERNATIVE TO DEATH PENALTY14.7.1 Section 53 of the IPC enumerates various kinds of punishments thatcan be awarded to the offenders, the highest being the death penalty andthe second being the sentence of imprisonment for life. At present there isno sentence that can be awarded higher than imprisonment for life and lowerthan death penalty. In USA a higher punishment called “Imprisonment forlife without commutation or remission” is one of the punishments. As deathpenalty is harsh and irreversible the Supreme Court has held that deathpenalty should be awarded only in the rarest of rare cases, the Committeeconsiders that it is desirable to prescribe a punishment higher than thatof imprisonment for life and lower than death penalty. Section 53 besuitably amended to include “Imprisonment for life without commutation orremission” as one of the punishments.14.7.2 Wherever imprisonment for life is one of the penalties prescribedunder the IPC, the following alternative punishment be added namely“Imprisonment for life without commutation or remission”. Whereverpunishment of imprisonment for life without commutation or remission isawarded, the State Governments cannot commute or remit the sentence.Therefore, suitable amendment may be made to make it clear that the StateGovernments cannot exercise power of remission or commutation when sentenceof “Imprisonment for life without remission or commutation” is awarded.This however cannot affect the Power of Pardon etc of the President and theGovernor under Articles 72 and 161 respectively.”63. In its report submitted in January 2013, Committee on Amendment toCriminal Law under the chairmanship of Justice J.S. Verma made followingrecommendations on life imprisonment:-“On Life Imprisonment13. Before making our recommendation on this subject, we would like tobriefly examine the meaning of the expression “life” in the term “lifeimprisonment”, which has attracted considerable judicial attention.14. Mohd. Munna v. Union of India reported in 2005 (7) SCC 417 reiteratesthe well settled judicial opinion that a sentence of imprisonment for lifemust, prima facie, be treated as imprisonment for the whole of theremaining period of the convict’s natural life. This opinion was recentlyrestated in Rameshbhai Chandubhai Rathode v. State of Gujarat reported in2011(2) SCC 764, and State of U.P. v. Sanjay Kumar reported in 2012(8) SCC537, where the Supreme Court affirmed that life imprisonment cannot beequivalent to imprisonment for 14 or 20 years, and that it actually means(and has always meant) imprisonment for the whole natural life of theconvict.15. We therefore recommend a legislative clarification that lifeimprisonment must always mean imprisonment “for ‘the entire natural life ofthe convict’.”Pursuant to these recommendations, certain Sections were added in the IPCwhile other Sections were substantially amended by Criminal Law AmendmentAct of 2013 (Act 13 of 2013). As a result Sections 370(6), 376-A, 376-D and376-E now prescribe a punishment of “with imprisonment for life which shallmean imprisonment for the remainder of that persons natural life”. Thuswhat was implicit in the sentence for imprisonment of life as laid down inGodse and followed since then has now been made explicit by the Parliamentin certain Sections of the IPC. However, none of the amendments reflectedthe introduction of punishment suggested by Malimath Committee.64. Thus despite recommendations of Justice Malimath Committee tointroduce a punishment higher than life imprisonment and lesser than deathpenalty similar to the one which exists in USA, Parliament has chosen notto act in terms of recommendations for last 12 years. In this backdrop, itwas submitted by Mr. Rakesh Dwivedi, learned Senior Advocate that inShraddananda(2)6 this court in fact carved out and created a new form ofpunishment and resorted to making a legislation on the point. It wasfurther submitted that Section 433A of Cr.P.C. prescribes minimum actualimprisonment which must be undergone in cases of life imprisonment on twocounts, where death sentence is one of the alternatives or where deathsentence is commuted to imprisonment for life. Even the prisoner who at onepoint of time was awarded a death sentence is entitled, upon his deathsentence being commuted to life imprisonment, to be considered underSection 433A. In his submission, it would not be within the powers of thecourt to put the sentence of life imprisonment in such cases beyondapplication of remissions, in the teeth of the Statute. Mr. T.R.Andhyarujina, learned Senior Advocate appearing for one of the intervenorssubmitted that what is within the domain of the judiciary is power to grantor award sentence as prescribed and when it comes to its execution thedomain is that of the executive. In his submission howsoever strong be thetemptation on account of gravity of the crime, there could be no trenchinginto the power of the executive. He submitted that it is not for thejudiciary to say that there could be no commutation at all, which would beviolative of the concept of separation of powers. Reliance was placed onSection 32A of NDPS Act to contend that wherever the Parliament intendedthat there be no remissions in respect of any offence, it has chosen to sayso in specific terms.65. In a recent decision of this Court in Vikram Singh @ Vicky & anotherv. Union of India and others[43], while considering challenge to the awardof death sentence for an offence under Section 364A of the IPC this Courtconsidered various decisions on the issue of punishment. It consideredsome American decisions holding that fixing of prison terms for specificcrimes involves a substantive penalogical judgment which is properly withinthe province of legislatures and not courts and that the responsibility formaking fundamental choices and implementing them lies with the legislature. In the end, the conclusions (b), (c) and (d) as summed up by this Courtwere as under:“(b) Prescribing punishment is the function of the legislature and not theCourts.(c) The legislature is presumed to be supremely wise and aware of theneeds of the people and the measures that the necessary to meet thoseneeds.(d) Court show deference to the legislative will and wisdom and are slowin upsetting the enacted provisions dealing with the quantum of punishmentprescribed for different offences.”66. Section 302 IPC prescribes two punishments, the maxima being thedeath sentence and the minima to be life sentence. Shraddananada(2)6proceeds on the footing that the court may in certain cases take recourseto the expanded option namely the hiatus between imprisonment for 14 yearsand the death sentence, if the facts of the case so justify. The hiatusthus contemplated is between the minima i.e. 14 years and the maxima beingthe death sentence. In fact going by the punishment prescribed in thestatute there is no such hiatus between the life imprisonment and the deathsentence. There is nothing that can stand in between these two punishmentsas life imprisonment, going by the law laid down in Godse’s case is tillthe end of one’s life. What Shraddananda(2)6 has done is to go by thepractical experience of the life imprisonment getting reduced toimprisonment for a period of not more that 14 years and assess that levelto be the minima and then consider a hiatus between that level and thedeath sentence. In our view this assumption is not correct. What happenson the practical front cannot be made basis for creating a sentence by theCourts. That part belongs specifically to the legislature. If theexperience in practice shows that remissions are granted in unsound manner,the matter can be corrected in exercise of judicial review. In any case inthe light of our discussion in answer to Question in Para 52.6, in cases ofremissions under Section 432/433 of Cr.P.C. an approach will necessarilyhave to be made to the Court, which will afford sufficient check andbalance.67. It may be relevant to note at this state that in England andWales, the mandatory life sentence for murder is contained in Section 1(1)of the Murder (Abolition of the Death Penalty) Act, 1965. The CriminalJustice Act, 2003 empowers a trial judge, in passing a mandatory lifesentence, to determine the minimum term which the prisoner must servebefore he is eligible for early release on licence. The statute allows thetrial judge to decide that because of the seriousness of the offence, theprisoner should not be eligible for early release (in effect to make a“whole life order” that is to say till the end of his life. In effect, the recommendations of Malimath Committee were onsimilar lines to add a new form of punishment which could similarly empowerthe Courts to impose such punishment and state that the prisoner would notbe entitled to remissions. Section 32A of the NDPS Act is also an examplein that behalf. What is crucial to note is the specific empowerment under theStatute by which a prisoner could be denied early release or remissions. It ma68. Shraddananda (2)6 does not proceed on the ground that uponinterpretation of the concerned provision such as Section 302 of the IPC,such punishment is available for the court to impose. If that be so itwould be available to even the first court i.e. Sessions Court to imposesuch sentence and put the matter beyond any remissions. In a given case thematter would not go before the superior court and it is possible that theremay not be any further assessment by the superior court. If on the otherhand one were to say that the power could be traceable to the power ofconfirmation in a death sentence which is available to the High Court underChapter XXVIII of Cr.P.C., even the High Court while considering deathreference could pass only such sentence as is available in law. Could thepower then be traced to Article 142 of the Constitution?69. In Prem Chand Garg and another v. Excise Commissioner, U.P. andothers[44], Constitution Bench of this Court observed:-“….The powers of this Court are no doubt very wide and they are intended tobe and will always be exercised in the interest of justice. But that is notto say that an order can be made by this Court which is inconsistent withthe fundamental rights guaranteed by Part III of the Constitution. An orderwhich this Court can make in order to do complete justice between theparties, must not only be consistent with the fundamental rights guaranteedby the Constitution, but it cannot even be inconsistent with thesubstantive provisions of the relevant statutory laws….”(emphasis added)In Supreme Court Bar Association v. Union of India & another[45] whiledealing with exercise of powers under Article 142 of Constitution, it wasobserved :-“47. The plenary powers of this Court under Article 142 of the Constitutionare inherent in the Court and are complementary to those powers which arespecifically conferred on the Court by various statutes though are notlimited by those statutes. These powers also exist independent of thestatutes with a view to do complete justice between the parties. Thesepowers are of very wide amplitude and are in the nature of supplementarypowers. This power exists as a separate and independent basis ofjurisdiction apart from the statutes. It stands upon the foundation and thebasis for its exercise may be put on a different and perhaps even widerfooting, to prevent injustice in the process of litigation and to docomplete justice between the parties. This plenary jurisdiction is, thus,the residual source of power which this Court may draw upon as necessarywhenever it is just and equitable to do so and in particular to ensure theobservance of the due process of law, to do complete justice between theparties, while administering justice according to law. There is no doubtthat it is an indispensable adjunct to all other powers and is free fromthe restraint of jurisdiction and operates as a valuable weapon in thehands of the Court to prevent “clogging or obstruction of the stream ofjustice”. It, however, needs to be remembered that the powers conferred onthe Court by Article 142 being curative in nature cannot be construed aspowers which authorise the Court to ignore the substantive rights of alitigant while dealing with a cause pending before it. This power cannot beused to “supplant” substantive law applicable to the case or cause underconsideration of the Court. Article 142, even with the width of itsamplitude, cannot be used to build a new edifice where none existedearlier, by ignoring express statutory provisions dealing with a subjectand thereby to achieve something indirectly which cannot be achieveddirectly. Punishing a contemner advocate, while dealing with a contempt ofcourt case by suspending his licence to practice, a power otherwisestatutorily available only to the Bar Council of India, on the ground thatthe contemner is also an advocate, is, therefore, not permissible inexercise of the jurisdiction under Article 142. The construction of Article142 must be functionally informed by the salutary purposes of the article,viz., to do complete justice between the parties. It cannot be otherwise.As already noticed in a case of contempt of court, the contemner and thecourt cannot be said to be litigating parties.”(emphasis added)70. Further, in theory it is possible to say that even in cases wherecourt were to find that the offence belonged to the category of “rarest ofrare” and deserved death penalty, such death convicts can still be grantedbenefit under Section 432/433 of Cr.P.C. In fact, Section 433A contemplatessuch a situation. On the other hand, if the court were to find that thecase did not belong to the “rarest of rare” category and were to put thematter beyond any remissions, the prisoner in the latter category wouldstand being denied the benefit which even the prisoner of the level of adeath convict could possibly be granted under Section 432/433 of theCr.P.C. The one who in the opinion of the Court deserved death sentence canthus get the benefit but the one whose case fell short to meet the criteriaof “rarest of rare” and the Court was hesitant to grant death sentence,would languish in Jail for entirety of his life, without any remission. Ifabsolute ‘irrevocability of death sentence’ weighs with the Court in notawarding death sentence, can the life imprisonment ordered in thealternative be so directed that the prospects of remissions on any countstand revoked for such prisoner. In our view, it cannot be so ordered.71. We completely share the concern as expressed in Shraddananda(2)6 thatat times remissions are granted in extremely unsound manner but in our viewthat by itself would not and ought not to nudge a judge into endorsing adeath penalty. If the offence in question falls in the category of the“rarest of rare” the consequence may be inevitable. But that cannot be ajustification to create a new form of punishment putting the mattercompletely beyond remission. Parliament having stipulated mandatoryminimum actual imprisonment at the level of 14 years, in law a prisonerwould be entitled to apply for remission under the statute. If his case ismade out, it is for the executive to consider and pass appropriate orders.Such orders would inter alia consider not only the gravity of the crime butalso other circumstances including whether the prisoner has now been de-sensitized and is ready to be assimilated in the society. It would not beproper to prohibit such consideration by the executive. While doing so andputting the matter beyond remissions, the court would in fact be creating anew punishment. This would mean- though a model such a Section 32A wasavailable before the Legislature and despite recommendation by MalimathCommittee, no such punishment was brought on the Statute yet the Courtwould create such punishment and enforce it in an individual case. In ourview, that would not be permissible.72. In Pravasi Bhalai Sangathan v. Union of India and others [46], whileemphasizing that the court cannot rewrite, recast or reframe thelegislation it was observed as under:-“20. Thus, it is evident that the legislature had already providedsufficient and effective remedy for prosecution of the authors who indulgein such activities. In spite of the above, the petitioner sought reliefswhich tantamount to legislation. This Court has persistently held that ourConstitution clearly provides for separation of powers and the court merelyapplies the law that it gets from the legislature. Consequently, the Anglo-Saxon legal tradition has insisted that the Judges should only reflect thelaw regardless of the anticipated consequences, considerations of fairnessor public policy and the Judge is simply not authorised to legislate law.“If there is a law, Judges can certainly enforce it, but Judges cannotcreate a law and seek to enforce it.” The court cannot rewrite, recast orreframe the legislation for the very good reason that it has no power tolegislate. The very power to legislate has not been conferred on thecourts. However, of lately, judicial activism of the superior courts inIndia has raised public eyebrows time and again.” Similarly in Sushil Kumar Sharma v. Union of India and others[47],it was observed that if the provision of law is misused and subjected tothe abuse, it is for the legislation to amend modify or repeal it, ifdeemed necessary.73. The power under Section 432/433 Cr.P.C. and the one exercisable underArticles 72 and 161 of the Constitution, as laid down in Maru Ram (supra)are streams flowing in the same bed. Both seek to achieve salutarypurpose. As observed in Kehar Singh (supra) in Clemency jurisdiction it ispermissible to examine whether the case deserves the grant of relief andcut short the sentence in exercise of executive power which abridges theenforcement of a judgment. Clemency jurisdiction would normally beexercised in the exigencies of the case and fact situation as obtainingwhen the occasion to exercise the power arises. Any order putting thepunishment beyond remission will prohibit exercise of statutory powerdesigned to achieve same purpose under Section 432/433 Cr.P.C.. In ourview Courts cannot and ought not deny to a prisoner the benefit to beconsidered for remission of sentence. By doing so, the prisoner would becondemned to live in the prison till the last breath without there beingeven a ray of hope to come out. This stark reality will not be conduciveto reformation of the person and will in fact push him into a dark holewithout there being semblance of the light at the end of the tunnel.74. As stated in Prem Chand Garg (supra) an order in exercise of powerunder Article 142 of the Constitution of India must not only be consistentwith the fundamental rights guaranteed by the Constitution, but it cannoteven be inconsistent with the substantive provisions of the relevantstatutory laws. In A.R. Antulay v. R.S. Naik[48]a direction by which thepetitioner was denied a statutory right of appeal was recalled. Afortiorari, a statutory right of approaching the authority under Section432/433 Cr.P.C. which authority can, as laid down in Kehar Singh (supra)and Epuru Sudhakar (supra) eliminate the effect of conviction, cannot bedenied under the orders of the Court.75. The law on the point of life imprisonment as laid down in Godse’scase (supra) is clear that life imprisonment means till the end of one’slife and that by very nature the sentence is indeterminable. Any fixedterm sentence characterized as minimum which must be undergone before anyremission could be considered, cannot affect the character of lifeimprisonment but such direction goes and restricts the exercise of power ofremission before the expiry of such stipulated period. In essence, anysuch direction would increase or expand the statutory period prescribedunder Section 433A of Cr.P.C. Any such stipulation of mandatory minimumperiod inconsistent with the one in Section 433A, in our view, would not bewithin the powers of the Court.Our answer to Sub Question (b) of Question in Para 52.1 is:Question b: Whether as per the principles enunciated in paragraphs 91 to 93of Swamy Shraddananda(2)6, a special category of sentence may be made forthe very few cases where the death penalty might be substituted by thepunishment for imprisonment for life or imprisonment for a term in excessof fourteen years and to put that category beyond application of remission?Answer. In our view, it would not be open to the Court to make anyspecial category of sentence in substitution of death penalty and put thatcategory beyond application of remission, nor would it be permissible tostipulate any mandatory period of actual imprisonment inconsistent with theone prescribed under Section 433A of Cr. P.C.76. Reference answered accordingly.W. P (CRL.) Nos.185, 150, 66 OF 2014 & Crl. Appeal NO.1215 OF 2011 These Writ Petitions and Criminal Appeal are disposed of in terms ofthe decision in Writ Petition (Criminal) No.48 of 2014. 77. Our conclusions in respect of Questions referred in theReferral Order, except in respect of sub question (b) of Question in Para52.1 of the Referral Order, are in conformity with those in the draftjudgment of Hon’ble Kalifulla J. Since our view in respect of sub question(b) of Question in Para 52.1 of the Referral Order is not in agreement withthat of Hon’ble Kalifulla J., while placing our view we have dealt withother questions as well. ……………………………..……J. (Uday Umesh Lalit) ……………………………..……J. (Abhay Manohar Sapre)New Delhi, December 2, 2015 [ Reportable IN THE SUPREME COURT OF INDIA CRIMINAL ORIGINAL JURISDICTION WRIT PETITION (Crl.) No. 48 OF 2014Union of India …..….Petitioner(s) VERSUSV. Sriharan @ Murugan & Ors. ……Respondent(s)WithWrit Petition (Crl.) No.185/2014Writ Petition (Crl.) No.150/2014Writ Petition (Crl.) No.66/2014Criminal Appeal No.1215/2011Abhay Manohar Sapre, J.1. I have had the benefit of reading the elaborate, well considered andscholarly written two separate draft opinions proposed to be pronounced bymy learned Brothers Justice Fakkir Mohamed Ibrahim Kalifulla and JusticeUday Umesh Lalit.2. Having gone through the opinions of both the learned Brothers verycarefully and minutely, with respect, I am in agreement with the reasoningand the conclusion arrived at by my Brother Justice Uday Umesh Lalit inanswering the reference.3. Since I agree with the line of reasoning and the conclusion arrivedat by my Brother Justice Uday Umesh Lalit while answering the questionsreferred to this Bench, I do not consider it necessary to give my separatereasoning nor do I wish to add anything more to what has been said byBrother Lalit J. in his opinion.4. In my view, it is only when some issues are not dealt with or thoughdealt with but requires some elaboration, the same can be supplementedwhile concurring. I, however, do not find any scope to meet sucheventuality in this case and therefore no useful purpose would be served inwriting an elaborate concurring opinion. ..……..................................J. [ABHAY MANOHAR SAPRE]New Delhi;December 02, 2015. Reportable IN THE SUPREME COURT OF INDIA CRIMINAL ORIGINAL/APPELLATE JURISDICTION WRIT PETITION (CRL.)NO.48 OF 2014UNION OF INDIA … PETITIONER(S) VERSUSV. SRIHARAN @ MURUGAN AND ORS. ... RESPONDENT(S) WITH WRIT PETITION (CRL.) NO.185 OF 2014 WITH WRIT PETITION (CRL.) NO.150 OF 2014 WITH WRIT PETITION (CRL.) NO.66 OF 2014 AND WITH CRIMINAL APPEAL NO.1215 OF 2011 O R D E R Now that we have answered the Reference in the matters, thematters will now be listed before an appropriate three learned Judges'Bench for appropriateorders and directions in the light of the majority Judgment of this Court. ...................CJI (H.L. DATTU) …...............................J. (FAKKIR MOHAMED IBRAHIM KALIFULLA) ....................J. (PINAKI CHANDRA GHOSE) …..................J. (ABHAY MANOHAR SAPRE) …..................J. (UDAY UMESH LALIT) NEW DELHI,DECEMBER 02, 2015.ITEM NO.1A COURT NO.1 SECTION X S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGSWrit Petition(Criminal) No. 48/2014UNION OF INDIA Petitioner(s) VERSUSV. SRIHARAN @ MURUGAN & ORS. Respondent(s)WITH W.P.(Crl.) No. 185/2014W.P.(Crl.) No. 150/2014W.P.(Crl.) No. 66/2014Crl.A. No. 1215/2011Date : 02/12/2015 These petitions/appeal were called on for pronouncement of Judgment today.For Petitioner(s) Mr.Ranjit Kumar, Sol.Gen.of India Ms.V.Mohana, Sr.Adv. Mrs. Binu Tamta, Adv. Mr. Dhruv Tamta, Adv. Mr.D.L.Chidananda,Adv. Ms.Movita, Adv. Mr.R.K.Verma, Adv. Mr. B. Krishna Prasad,Adv. Ms.Sushma Suri, Adv. Mr. Sinha Shrey Nikhilesh, Adv.. Mr.Sarthak Sachdev,Adv. Mr.Toyesh Tewari, Adv. Mr.Jai Sahai Endlaw,Adv. Mr.Shouryendu Ray,Adv. Mr. Maanav Kumar, Adv. Mr.harish Kr.Khinchi,Adv. Mr.Vinay Navare, Adv. Ms. Abha R. Sharma,Adv. Mr. Harshvir Pratap Sharma, Adv. Mr. Ajay Sharma, Adv. Mr.Pankaj Kumar, Adv. Mr.Varinder Kumar Sharma, Adv. Mr. Varun Thakur, Adv. Ms. Shraddha Saran, Adv. Ms. Meera Kaura Patel, Adv. Mr.S.C.Patel, Adv. Mr. Tejas Patel, Adv.For Respondent(s) Mr.Rakesh Dwivedi, Sr.Adv. Mr.Kabir S.Bose, Adv. Mr.Anip Sachthey, Adv. Ms. Sansriti Pathak, Adv. Ms. Shagun Matta, Adv. Ms. Hancy Wadhwa, Adv.R.Nos.1,2,4 to 7 Mr.Ram Jethmalani, Sr. Adv. Mr.Yug Chaudhry, Adv. Ms. Lata Krishnamurty, Adv. Ms. Mala, Adv. Mr. Anirudh Ananad, Adv. Mr. Sonanadry Joud, Adv. Mr. Rohit Kumar, Adv. Mr. N. Chandrasekaran, Adv. Mr. Sidharth Sharma, Adv. Mr. S. Prabu Ramasubramanian, Adv. Ms. Ragini Ahuja, Adv. MR.S.Sethu Mahendran, Adv. Mr.K.Paari Vendhan, Adv. Mr. S. Gowthaman, Adv.rr.3 Mr. Rishab Sancheti, Adv. Mr. K. Paari Vendhan, Adv. Mr.S.Gowthaman, Adv. Mr.S.Prabu Ramasubramanian, Adv. Prof.Ravi Verma Kumar, Adv.Genl. of State of Karnataka Ms. Anitha Shenoy, Adv. Ms. Aparna Appaiah, Adv. Mr. E.C. Vidya Sagar, Adv. Mr. Anil Kumar Mishra-I,Adv.For Manipur Mr.Sapam Biswajit Meitei, Adv. Mr.L.Thongam, Adv. Ms.B.Khushbansi,Adv. Mr. Ashok Kumar Singh,Adv. Mr. Balaji Srinivasan,Adv. For Chhattisgarh Mr.C.D. Singh, Adv. Ms.Sakshi Kakkar, Adv. Mr.Atul Jha, Adv. Mr.Sandeep Jha, Adv. Mr. Dharmendra Kumar Sinha,Adv. Mr. Gopal Singh,Adv. Mr.Shreyas Jain, Adv.For Tripura Mr.Gopal Singh, Adv. Mr.Rituraj Biswas, Adv. Ms.Varsha Poddar,Adv. Mr. Guntur Prabhakar,Adv. Ms.Prerna Singh, Adv. Mr. Kamal Mohan Gupta,Adv. Mr.Pramod Kr.Singh, Adv. Mr. Mishra Saurabh,Adv. Ms.Vanshaja Shukla, Adv. Mr.Ankit Kr.Lal, Adv. Mr.Rakesh Dwivedi, Sr.Adv. Mr. Subramonium Prasad, Sr. Adv. Ms.Sansriti Pathak, Adv. Mr. M. Yogesh Kanna,Adv. Mr.Jayant Patel,Adv. Mr.Ashmeet Singh, Adv. Mr. A.N.S Nadkarni, Adv.Gen. for Goa Mr.Siddharth Bhatnagar, Adv. Mr. S.S. Rebello, Adv. Mr. Anshuman Shrivastava, Adv. Ms. Garima Tiwari,Adv.Intervenor Mr.Sanjay Parikh, Adv. Mr. Pukhrambam Ramesh Kumar,Adv. Mr. Sumit Kumar Vats, Adv. Mr. P.V. Kovilan, Adv. Mrs. Geetha Kovilan,Adv. Mr. V. Vasudevan, Adv.For Jharkhand Mr. Ajit Kumar Sinha, Sr. Adv. Mr. Tapesh Kumar Singh,Adv. Mr.Shashank Singh, Adv. Mohd.Waquas, Adv.For Puducherry Mr. V. G. Pragasam,Adv. Mr.Prabu Ramasubramanian, Adv. Prof.Ravi Verma Kumar, Adv.Gen., Karnataka Ms. Anitha Shenoy,Adv. Ms. Visruti Vijay, Adv. Mr. A. Mariarputham, Adv. Gen. Sikkim Ms.Aruna Mathur, Adv. Mr.Yusuf Khan, Adv. Mr.K.Vijay Kumar, Adv. For M/s Arputham, Aruna & Co.,Adv. Ms. Vartika S. Walia, Adv. for M/s Corporate Law Group,Adv.For Andaman &Nicobar Admn. Mr.K.V.Jagdishvaran, Adv. Ms. G. Indira,Adv. Ms. Hemantika Wahi,Adv. Ms.Jesal Wahi, Adv.For U.P. Mr.Gaurav Bhatia, AAG Ms. Pragati Neekhra,Adv. Mr.Utkarsh Jaiswal, Adv. Mr.Gaurav Shrivastava, Adv.For H.P. Mr. Suryanaryana Singh, Addl. Adv. Gen. Ms. Pragati Neekhra, Adv.Applicant Ms.Madhavi Divan, Adv. Ms. Ranjeeta Rohtagi,Adv. Mr.Manan Verma, Adv.Maharashtra Mr. Nishant Ramakantrao Katneshwarkar,Adv. Mr.Arpit Rai, Adv. Ms.Rachana Srivastava, Adv. Mr.Ashutosh Kr.Sharma, Adv. Mr.V.Madhukar, AAG Ms.Anvita Cowshish, Adv. Mr. Jagjit Singh Chhabra, Adv. Mr.Kuldip Singh, Adv. Mr.Renjith B.Marar, Adv. Ms.Lakshmi N.Kaimal, Adv. Mr. Anas Muhamed Shamnad, R., Adv. Ms.Anu Dixit Kaushik, Adv.For Rajasthan Mr.S.S.Shamshery, AAG. Mr.Amit Sharma, Adv. Mr.Ishu Prayash, Adv. Ms.Spandana Reddy, Adv. Ms.Ruchi Kohli, Adv. Mr.V.Giri, Sr.Adv. Mr.Ramesh Babu, M.R.,Adv. Mr.Mohammed Sadique, T.A.,Adv. Ms.Swati Setia, Adv. Mr. Jogy Scaria, Adv Ms.Beena Victor, Adv. Mr.Robin Jacob, Adv. Mr.Suryanarayana Singh, Sr.AAG Ms.Pragati Neekhra, Adv.Impleader Mr.Ram Sankar, Adv. Mr.G.Ananda Selvam, Adv. Mr.R.V.Kameshwaran,Adv. Mr. Manoj Kumar, Adv. Mr. Aditya Narayan Singh, Adv. Mr.Samir Ali Khan, Adv. Mr. Atmaram N.S. Nadkarni, Adv.Gen. Mr. V. Madhukar, Adv. Mr. Mohit D. Ram, Adv. Mr. Pradesh Dangvi, Adv. Ms. Purna Bhandari, Adv. Mr. S.S. Rebero, Adv. Mr. Amogh Prashudesai, Adv. Mr. Sushil Karanjkar, Adv. Mr. Ratan Wasekar, Adv. Mr. Yatendra Sharma, Adv. Mr. Prashant Kumar, Adv. Mr. Anil Grover, AAG Mr. Satish Kumar, Adv. Mr. Sanjay Visen, Adv.For Nagaland Ms. K. Enatoli Sema, Adv. Mr. Edward Belho, Adv. Mr. Amit Kumar Singh, Adv. Mr.Sushil Karanjkar, Adv. Mr.Dharmendra Kishor, Adv. For Mr.K.N.Rai, Adv.Date : 02/12/2015 These petitions/appeal were called on for pronouncement of Judgment today. The reference is answered by Hon'ble the Chief Justie, Hon'bleMr.Justice Fakkir Mohamed Ibrahim Kalifulla, Hon'ble Mr.Justice PinakiChandra Ghose and Hon'ble Mr.Justice Abha Manohar Sapre and Hon'bleMr.Justice Uday Umesh Lalit by the Bench comprising of Hon'ble the ChiefJustice, Hon'ble Mr.Justice Fakkir Mohamed Ibrahim Kalifulla, Hon'bleMr.Justice Pinaki Chandra Ghose and Hon'ble Mr.Justice Abha Manohar Sapreand Hon'ble Mr.Justice Uday Umesh Lalit, in terms of two separate signedreportable Judgments.(G.V.Ramana) (Vinod Kulvi) AR-cum-PS Asstt.Registrar (Two separate signed reportable Judgements one by Hon.the Chief Justice, Hon.Mr.Justice Fakkir Mohamed Ibrahim Kalifulla, Hon.Mr.Justice Pinaki Chandra Ghose and the other by Hon.Mr.Justice Abhay Manohar Sapre and Hon.Mr.Justice Uday Umesh Lalit and a separate short note by Hon'ble Mr.Jusitce Abhay Manohar Sapre, agreeing with the view of the Hon'ble Mr.Justice Uday Umesh Lalit is also separately attached herewith are placed on the file)-----------------------[1] 2014(11) SCC 1[2] 1999 (5) SCC 253[3] Suthendraraja alias Suthenthira Raja alias Santhan and others vs.State through DSP/CBI, SIT, CHENNAI (1999) 9 SCC 323[4] L.K. Venkat v. Union of India and others (2012) 5 SCC 292[5] 2014 (4) SCC 242[6] (2008) 13 SCC 767[7] (2003)4 SCC 1[8] (1961) 1 SCR 497 at 516[9] (1989) 1 SCC 204 at 213[10] (2006) 8 SCC 161[11] Constituent Assembly Debate Vol. 7 Page 1129[12] 1955 (2) SCR 225[13] (1976) 3 SCC 470[14] (1976) 3 SCC 616[15] (1982) 2 SCC 177[16] (2004) 1 SCC 616[17] (1974) 3 SCC 531[18] (2010) 5 SCC 246[19] (2004) 9 SCC 580[20] (1994) 3 SCC 569[21] (1981)1 SCC 106[22] (2013)2 SCC 452[23] (2013)3 SCC 294[24] (2013) 13 SCC 1[25] (2001) 3 SCC 170[26] (2004) 4 SCC 714[27] (2011) 5 SCC 341[28] (2013) 3 SCC 117[29] (1993)4 SCC 441[30] (2013) 3 SCC 1[31] (2010) 3 SCC 571[32] (2010) 5 SCC 1[33] (1976) 1 SCC 157[34] (2013) 14 SCC 24[35] (2010) 4 SCC 216[36] (2003) 7 SCC 121[37] (2014) 3 SCC 1[38] (1961) 3 SCR 440[39] 2007(13) SCC 606[40] (2000) 2 SCC 595[41] (1979) 3 SCC 745[42] (1979) 3 SCC 646[43] AIR 2015 SC 3577[44] AIR 1963 SC 996[45] 1998 (4) SCC 409[46] 2014(11) SCC 477[47] (2005) 6 SCC 281[48] (1988) 2 SCC 602
Mohit Singh

Mohit Singh

Mohit Singh is an advocate at the Supreme Court of India.

Mohit Singh

Latest posts by Mohit Singh (see all)

Original author: Mohit Singh
No comments yet: share your views